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I Series  No.  2 | 

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I THE  SHANTUNG  QUESTION  I 

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P D s 

a By  (a 

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I MINGCHIEN  JOSHUA  BAU,  Ph.D.  | 


Edited  by  the  English  Editorial  Committee  for  the  H 
Washington  Conference  of  the  ^ 

Chinese  Students’  Alliance.  ^ 

y 

H 

Published  by  the  Chinese  Students’  Alliance  in  the  ^ 
United  States  of  America  1 


jiaRaw[Hiaaigi«iaBiai«ii5iiHiiaiaiBisaiaaaaawaaaaaia«ia[«iai«iaiaa(Kiiaii«ii«i 


Copyright  by 

MINGCHIEN  JOSHUA  BAU 
All  rights  reserved 


THE  SHANTUNG  QUESTION 

by 

Mingchien  Joshua  Bau,  Ph.D. 

Author  of  “The  Foreign  Relations  of  China” 


This  article  constitutes  a chapter  in  Dr.  M.  J.  Bau’s 
forthcoming  book  on  The  Foreign  Relations  of  China 


PREFACE 


The  Chinese  Students’  Alliance  plans  to  publish  a series  of 
pamphlets  before  the  convocation  of  the  Washington  Con- 
ference on  various  pertinent  subjects  bearing  on  China  and 
the  Washington  Conference.  The  first  of  the  series  is  an 
introduction  to  the  general  subject,  China  and  the  Washington 
Conference,  written  by  T.  L.  Wang,  prize-winner  of  the  Wah 
Chang  Trading  Corporation  Essay  Contest.  The  second  of 
the  series  is  on  the  Shantung  Question,  written  by  M.  Joshua 
Bau,  which  analyzes  the  problem  from  the  point  of  view  of 
history  and  international  law.  The  subject  is  brought  up  to 
date,  and  includes  the  recent  exchanges  of  communications 
between  the  Chinese  and  Japanese  Governments  regarding 
the  terms  of  settlement.  Pamphlets  on  Tariff  Automony  and 
Extraterritoriality  will  soon  be  ready  for  publication  and  dis- 
tribution. Another  pamphlet  entitled  “Problems  Involved  in 
the  Washington  Conference,”  has  been  prepared  by  C.  P. 
Cheng,  which  will  soon  appear  in  the  series.  Other  pamph- 
lets are  in  preparation;  and,  as  soon  as  ready,  they  will  be 
distributed  upon  request. 


Mingchien  Joshua  Bau. 


THE  SHANTUNG  QUESTION 

The  Shantung  Question  has  become  a world  problem.  Like 
the  Alsace-Lorraine  controversy,  which  has  just  been  settled 
by  the  World  War,  it  carries  the  potential  germ  of  another 
world  conflict.  As  the  facts  of  this  question  are  well-known, 
we  shall  not  attempt  to  reiterate  them,  but  shall  confine  our 
endeavors  to  an  analysis  of  the  problem  with  a view  to  reach- 
ing a solution,  just  and  equitable  to  China  and  Japan. 

To  refresh  the  memory,  we  will  recall  that  shortly  after  the 
outbreak  of  the  World  War,  China  declared  her  neutrality 
by  a Presidential  Mandate  of  August  6,  1914.  On  August  15, 
1914,  Japan  presented  an  ultimatum  to  Germany  advising 
unconditional  surrender  of  the  leased  territory  on  or  before 
September  15,  “with  a view  to  eventual  restoration  of  the 
same  to  China,”  and  also  advising  the  immediate  withdrawal 
or  disarmament  of  all  belligerent  vessels  within  Chinese  and 
Japanese  waters,  asking  for  a reply  by  noon  of  August  23. ^ 
Failing  to  receive  a reply  at  the  appointed  time,  she  declared 
war  on  Germany  and  proceeded  to  attack  the  German  lease- 
hold of  Kiaochow.  Meanwhile  China  did  not  protest  against 
either  the  ultimatum  or  the  attack,  but  on  the  contrary,  inti- 
mated her  intention  to  participate  in  the  campaign,  which, 
however,  was  not  received  with  favor. 

During  the  campaign,  on  September  3,  1914,  Japan  landed 
her  troops  at  Lungkow,  Shantung,  outside  the  leased  terri- 
tory. On  the  same  day,  China  proclaimed  a war  zone  de- 
limiting the  belligerent  area  to  approximately  one  hundred 
miles  west  of  Tsingtao,  including  Kiaochow  and  Laichow,  but 
excluding  Weihsien  and  Tsinan.  On  September  26,  1914,  the 
Japanese  troops,  marching  from  Lungkow  to  Weihsien,  cap- 
tured the  railway  station  there  belonging  to  the  Tsingtao- 
Tsinan  Railway,  and  on  October  6,  1914,  they  seized  the  rail- 
way station  at  Tsinan,  the  capital  of  Shantung.  Soon  they 


1.  Millard,  Our  Eastern  Question,  p.  91. 

s 


took  possession  of  the  entire  line  of  the  Tsingtao-Tsinan 
Railway,  displacing  its  employes  and  substituting  Japanese 
subjects.  In  addition  they  also  seized  the  German  mines 
adjoining  the  railway.  Meanwhile  the  siege  of  Tsingtao  pro- 
ceeded and  on  November  7,  1914,  the  stronghold  was  captured. 

Thereafter,  on  January  18,  1915,  Japan  presented  the  now 
celebrated  Twenty-one  Demands,  among  which  was  the  pro- 
vision (Group  I,  Article  I)  : 

“The  Chinese  Government  engages  to  give  full  assent  to 
all  matters  upon  which  the  Japanese  Government  may  here- 
after agree  with  the  German  Government  relating  to  the 
disposition  of  all  rights,  interests  and  concessions,  which 
Germany,  by  virtue  of  treaties  or  otherwise,  possesses  in 
relation  to  the  province  of  Shantung.”  * 

. On  May  7,  1915,  Japan  presented  an  ultimatum,  because  of 
which  China  yielded.  In  consequence,  the  treaties  of  May  25, 
1915,  were  signed,  consisting  of  two  treaties,  one  relating  to 
Shantung  with  three  exchanges  of  notes,  and  the  other  to 
South  Manchuria  and  Eastern  Inner  Mongolia  with  nine  ex- 
changes of  notes. 

In  return,  Japan  pledged  to  restore  the  leased  territory  of 
Kiaochow,  in  an  exchange  of  notes,  May  25,  1915  : 

“When,  after  the  termination  of  the  present  war,  the 
leased  territory  of  Kiaochow  Bay  is  completely  left  to  the 
free  disposal  of  Japan,  the  Japanese  Government  will  re- 
store the  said  leased  territory  to  China  under  the  following 
conditions. 

“1.  The  whole  of  Kiaochow  Bay  to  be  opened  as  a com- 
mercial seaport. 

“2.  A concession  under  the  exclusive  jurisdiction  of 
Japan  to  be  established  at  a place  designated  by  the  Japa- 
nese Government. 

“3.  If  the  foreign  powers  desire  it,  an  international  con- 
cession may  be  established. 

‘4.  As  regards  the  disposal  to  be  made  of  the  buildings 
and  properties  of  Germany  and  the  conditions  and  procedure 


2.  The  Chino- Japanese  Negotiations,  the  Chinese  Official  State- 
ment, 1015,  p.  19. 


6 


relating  thereto,  the  Japanese  Government  and  the  Chinese 
Government  shall  arrange  the  matter  by  mutual  agreement 
before  the  restoration.”  ^ 

Then,  on  March  14,  1917,  China  severed  diplomatic  rela- 
tions with  Germany,  and  on  Angust  14,  1917,  declared  war 
on  Germany  and  Austria-Hungary,  abrogating  all  the  treaties, 
agreements,  and  conventions  she  had  had  with  the  Central 
Powers,  to  the  effect  that 

“All  the  treaties  of  whatever  nature  between  China  and 
Germany  as  well  as  Austria-Hungary  are  abrogated,  as  also 
all  such  provisions  of  the  Protocol  of  September  7,  1901, 
and  other  similar  international  agreements  in  so  far  as  they 
concern  China  and  Germany  as  well  as  Austria-Hungary.”* 
This  was  duly  taken  notice  of  by  the  legations  addressed, 
including  that  of  Japan. 

On  September  24,  1918,  in  an  exchange  of  notes  between 
the  Chinese  Minister  at  Tokio  and  the  Japanese  Minister  for 
Foreign  Affairs,  respecting  adjustment  of  questions  con- 
cerning Shantung,  it  was  agreed  that  (Art.  6)  “the  Kiao- 
chow-Chinan  Railway,  after  its  ownership  is  definitely  de- 
termined, is  to  be  made  a Chino-Japanese  joint  enter- 
prise.” ® 

At  the  Paris  Peace  Conference  of  1919,  both  China  and 
Japan  contended  for  the  former  German  rights  in  Shantung. 
On  April  30,  1919,  the  Council  of  Three  rendered  the  decision 
in  favor  of  Japan,  which  was  incorporated  in  Articles  1S6, 
157,  158,  of  the  Treaty  of  Peace  with  Germany,  signed  at 
Versailles  on  June  28,  1919. 

The  question,  as  stated  above,  turns  on  these  issues ; 

1 Whether  Japan  has  the  right 

(1)  To  attack  the  leased  territory  of  Kiaochow ; 


3 Ibid,  p.  53. 

4.  MacMurra.v.  Treaties  and  Agreements  with  or  Concerning 
China,  1917/7. 

5.  Questions  for  Read.iustment,  submitted  by  China  to  the  Paris 
Peace  Conference.  1919,  p.  82. 


7 


(2)  To  land  her  troops  at  Lungkow  and  then  march 
through  Chinese  territory;  and 
(3)  To  seize  the  Kiaochow-Chinan  Railway  and  the 
adjoining  mines. 

2 Whether  China’s  Declaration  of  War  abrogates  all  treat- 
ies, conventions  and  agreements  with  Germany  and 
China  thus  recovers  the  German  concessions  in  Shan- 
tung. 

3 Whether  Japan’s  possession  of  German  rights  in  Shan- 
tung is  validated  by 

(1)  The  Treaty  of  May  25,  1915,  and 

(2)  The  Agreement  of  September  24,  1918. 

As  to  whether  Japan  had  the  right  to  attack  the  leased 
territory  of  Kiaochow,  there  seems  to  be  an  honest  difference 
of  opinion.  On  the  one  hand,  China  claims  that,  inasmuch  as 
she  reserved  her  sovereignty  over  the  leased  territory  in 
Article  I of  the  Lease  Convention,®  she  can  assert  the  neu- 
trality of  the  leased  territory  in  time  of  a war  in  which  the 
lessee  state  is  involved.  In  other  words,  arising  from  the 
reservation  of  sovereignty,  she  deems  the  leased  territory  as 
neutral,  and  not  subject  to  the  hostile  operation  of  bel- 
ligerents. Further,  even  in  case  an  attack  shoud  have  become 
necessary  to  abate  a nuisance  or  to  remove  a menace,  she  con- 
tends that  her  previous  consent  should  have  been  obtained 
before  the  attack  could  be  legitimate. 

On  the  other  hand,  Japan  claims  that,  basing  her  action  on 
the  precedent  of  Port  Arthur  and  Talienwan,  which  leased 
territories  she  took  from  Russia  in  the  war  of  1904-5,  the 
leased  territories  are  not  neutral,  but  are  subject  to  hostile 
operations  of  the  belligerents.  The  grant  of  the  right  of 
fortification,  she  contends,  and  the  surrender  of  the  right  of 
administration,  during  the  term  of  the  lease,  all  indicate  that 
these  territories  are  proper  objects  of  attack.  She  further 


6.  Hertslet’s  China  Treaties,  Vol.  I,  No.  59,  p.  351 ; Author’s  Chap- 
ter on  Leased  Territories,  The  Foreign  Relations  of  China. 

8 


maintains  that^  granted  she  had  no  right  to  attack  the  terri- 
tory, she  had  notified  the  Chinese  Government  before  attack, 
and  that  the  Chinese  Government  did  not  make  any  strenu- 
ous objection,  nor  lodge  any  protest,  but,  on  the  contrary, 
requested  participation  in  the  attack,  which,  though  rejected, 
could  be  taken  as  tantamount  to  tacit  consent^ 

As  to  whether  Japan  had  the  right  to  land  at  Lungkow  and 
march  through  the  Chinese  territory,  it  is  quite  safe  to  say 
that  Japan  had  no  such  right,  but,  on  the  contrary,  exceeded 
the  limit  of  her  rights  and  violated  the  neutrality  of  China. 
China  having  declared  her  neutrality  by  the  Presidential 
Mandate  of  August  6,  1914,®  Japan  was  under  obligation  to 
respect  her  neutrality.  She  had  no  more  right  to  move  her 
troops  and  supplies  through  the  neutral  territory  of  China 
than  Germany  had  in  1914  to  cross  the  neutral  territory  of 
Belgium  in  order  to  attack  France.  “It  is  a principle  of  the 
law  of  nations  that  no  belligerent  can  rightfully  make  use  of 
the  territory  of  a neutral  state  for  belligerent  purposes,  with- 
out the  consent  of  the  neutral  Government.”  ® 

It  has  been  contended  by  Japan  that  military  necessity 
justified  the  violation,  inasmuch  as  she  could  attack  Kiao- 
chow  more  easily  from  the  rear  than  from  the  front  or  the 
side.  This  argument,  however,  does  not  seem  to  stand  the 
test  of  analysis.  In  the  first  place,  there  was  no  military  ne- 
cessity calling  for  such  a violation  of  China’s  neutrality. 
Japan  could  have  attacked  Tsingtao  by  landing  within  the 
leased  territory  of  Kiaochow,  just  as  well  as  by  way  of  Lung- 
kow, if  not  better.  This  was  witnessed  by  the  action  of  the 
British,  who,  in  due  respect  of  China’s  neutrality,  landed  at 
Laoshan  on  September  23,  and  because  of  the  shorter  dis- 
tance from  Laoshan  to  Tsingtao,  than  from  Lungkow  to 
Tsingtao,  and  fewer  neutral  obstacles  in  the  way,  they  reached 


7.  The  Shantung  Question,  p.  40. 

8.  MacMurray,  1917/7. 

9.  Cushing,  Att  Gen.  1855,  7 op.  367,  cited  in  J.  B.  Moore,  Vol.  7, 
p.  10.89 


9 


the  scene  of  action  in  time  to  participate  in  the  first  en- 
counter with  the  Germans. 1®  This  action  on  the  part  of  the 
British  clearly  proved  that  there  was  no  such  military  neces- 
sity, and  this  alone,  in  glaring  contrast  with  Japan’s  action, 
is  sufficient  to  establish  the  guilt  of  Japan. 

Granting  for  argument  sake,  that  there  was  the  military 
necessity,  this  still  did  not  justify  Japan’s  violation  of  China’s 
neutrality.  Germany  pleaded  the  guilt  of  her  own  violation 
of  Belgian  neutrality  on  the  ground  of  military  necessity. 
But  the  world  did  not  condone  German’s  crime  on  that  ac- 
count. If  the  violation  of  Belgian  neutrality  is  unjustifiable, 
as  the  verdict  of  mankind  and  the  late  World  War  have  held 
it  to  be  so,  Japan’s  violation  of  China’s  neutrality  by  landing 
at  Lungkow  is  equally  unjustifiable,  and,  more  so,  because 
of  the  absence  of  any  ground  of  military  necessity. 

Perhaps  it  may  be  argued  that  China’s  proclamation  of  the 
war  zone,  on  the  same  day  of  Japan’s  landing  at  Lungkow, 
following  the  precedent  set  in  the  Russo-Japanese  War, 
seemed  to  have  given  her  implied  consent  and  hence  justified 
Japan’s  action.  It  must  be  understood,  however,  that  in  pro- 
claiming the  war  zone,  China  did  not  mean  to  condone  Japan’s 
action,  but  rather  aimed  simply  to  protect  herself  from  any 
consequences  resulting  from  the  actions  of  belligerents  within 
her  territory,  so  that  she  could  be  released  from  any  charges 
of  negligence  as  a neutral.  In  fact,  under  the  difficult  and 
embarrassing  situation,  the  proclamation  of  a war  zone  was 
probably  the  only  course  of  action  to  pursue.  For  China 
to  resist  Japan  at  Lungkow,  in  the  face  of  force  majeure, 
would  have  meant  war,  which  would  be  contrary  to  the  spirit 
of  the  law  of  neutrality.  On  the  other  hand,  for  China  to  re- 
main silent  would  have  been  equally  as  inexpedient,  since 
Germany  could  then  have  claimed  damage  for  injuries  due 


10.  The  Shantung  Question,  submitted  by  China  to  the  Paris 
Peace  Conference,  published  by  the  Chinese  National  Welfare 
Society,  March,  1920,  p.  40. 


10 


to  the  negligence  on  the  part  of  China  to  preserve  her  neu- 
trality. Hence,  confronted  with  a dilemma,  Chiha  was  con- 
strained to  proclaim  the  war  zone,  not  to  extenuate  Japan 
but  rather  to  protect  her  own  position  of  neutrality.  It  is 
therefore  plain  that  notwithstanding  the  proclamation  of  the 
war  zone,  Japan’s  landing  at  Lungkow  remains  a gross  viola- 
tion of  China’s  neutrality. 

Respecting  Japan’s  right  to  seize  the  Kiaochow-Chinan 
Railway,  and  the  adjoining  mines,  it  is  again  evident  that 
Japan  had  no  such  right,  but,  on  the  contrary,  she  did  so  in 
violation  of  China’s  neutrality.  The  railway  and  mines  in 
question  were  situated  within  Chinese  territory  outside  the 
leased  territory  of  Kiaochow,  and  hence  they  were  under  the 
protection  of  Chinese  authorities.  No  matter  whether  they 
were  the  public  or  private  property  of  Germans,  the  fact  that 
they  lay  within  the  Chinese  territory  was  sufficient  to  clothe 
them  with  the  protection  of  China’s  neutrality  and  to  exempt 
them  from  seizure  by  any  belligerent  whatsoever. 

In  fact,  Japan  perpetrated  the  seizure  in  spite  of  the  re- 
peated protests  of  the  Chinese  Government  and  thus  know- 
ingly violated  China’s  neutrality.  As  the  war  zone  delimited 
belligerent  activities  to  the  east  of  Weihsien  or  within  one 
hundred  miles  west  of  Tsingtao,  and  as,  on  September  26,  the 
Japanese  troops  proceeded  to  Weihsien  and  occupied  the  rail- 
way station,  the  Chinese  Government  protested  on  the  next 
day,  September  27,  1914 : 

“On  the  7th  day  of  September  a despatch  received  from 
your  Government  stated  that  your  Government  understood, 
with  some  difficulty,  what  our  Government  meant  in  that 
declaration.  This  Ministry  (the  Chinese  Foreign  Office) 
further  declared  that  the  railroad  from  Weihsien  to  Chinan 
should  be  under  Chinese  protection,  and  through  Your  Ex- 
cellency we  requested  your  Government  to  issue  an  order 
prohibiting  your  troops  from  advancing  to  Weihsien,  or  any 
place  west  of  Weihsien.  But  now  the  troops  of  your  Gov- 
ernment have  forced  their  way  into  Weihsien  and  taken 
possession  of  the  railway.  Considering  that  the  railway 


II 


belongs  to  a Sino-German  corporation,  that  all  the  railway 
stations  have  also  been  under  Chinese  protection,  and  in 
none  of  them  has  there  ever  been  any  German  troops,  and 
that  Weihsien  is  in  the  purely  neutral  territory,  the  acts 
committed  by  the  troops  of  your  country  are  manifestly 
contrary  to  the  declaration  and  in  violation  of  China’s 
neutrality.” 

Following  this  protest,  on  the  next  day,  September  28,  1914, 
the  Japanese  Minister  at  Peking  called  at  the  Chinese  Min- 
istry of  Foreign  Affairs,  and,  to  the  surprise  and  indigna- 
tion of  the  Chinese  Government,  informed  the  latter  that, 
because  of  military  necessity,  the  Japanese  troops  would 
move  westward  from  Weihsien  and  occupy  the  whole  line. 
In  consequence  of  this,  on  September  30,  1914,  the  Chinese 
Government  again  protested : 

“It  is  a settled  principle  that  even  the  public  property  of 
a belligerent,  while  on  a neutral  territory,  can  not  be  attack- 
ed, or  taken  possession  of  by  the  other  belligerent,  much 
more  so  in  the  present  case  when  the  property  in  question  is 
jointly  owned  by  Chinese  and  German  capitalists.  ...  It 
has  been  a long  while  since  the  troops  of  your  country  have 
begun  to  attack  Tsingtao,  and  the  German  troops  in  Tsing- 
tao  have  been  isolated,  rendered  helpless,  and  entirely  and 
long  ago  cut  off  from  the  communication  through  the  Kiao- 
chow  Railway.  Not  only  our  Government  will  never  allow 
the  Germans  to  make  use  of  the  line ; it  is  actually  beyond 
their  power  to  make  use  of  it.  Therefore  the  contemplated 
action  of  your  country  is  decidedly  not  a case  of  military 
necessity”!® 

In  response  to  these  repeated  protests,  the  Japanese  Gov- 
ernment replied  on  October  2,  1914,  that  the  German  Kiao- 
chow-Chinan  Railway  was  of  the  same  nature  and  character 
as  the  leased  territory  and  that  the  purpose  of  Japan’s  attack 
was  not  only  to  eliminate  the  German  base  of  Kiaochow,  but 
to  gain  the  control  and  administration  of  the  railway  in  ques- 


12.  Note  from  the  Ministry  of  Foreign  Affairs  to  the  Japanese 
Minister  at  Peking  protesting  against  violation  of  neutrality, 
Sept.  27,  1914,  The  Shantung  Question,  op.  cit.,  p.  j8. 

13.  Ministry  of  Foreign  Affairs  to  Japanese  Minister  at  Peking, 
Sept.  30,  1914,  The  Shantung  Question,  op.  cit.,  p.  59. 


12 


tion.  Reiterating  the  argument  of  military  necessity,  it  con- 
tended that,  lying  at  the  rear  of  the  leased  territory,  the  con- 
trol of  the  railway  was  essential  to  the  safety  of  Japan  in 
Kiaochow . 

“Regarding  the  Shantung  Railway,  . . . it  is  of  the  same 
character  as  the  leased  territory.  This  fact  is  beyond  dis- 
pute, in  view  of  its  origin,  the  special  charter  given  by  the 
German  - Government  and  the  way  in  which  the  company 
draws  its  funds.  . . . 

“Moreover,  a railway  from  its  very  nature  positively  can 
not  be  treated  one  part  separately  from  the  other.  Al- 
though one  part  of  this  German-owned  railway  is  situated 
west  of  Weihsien,  it  can  not  be  held  as  having  changed  its 
character  on  the  ground  that  a part  remains  in  neutral  terri- 
tory. Besides,  the  aim  of  the  Imperial  Government  is  not 
only  to  overthrow  the  base  possessed  by  the  enemy,  but  also 
to  cause  the  control  and  administration  of  this  indivisible 
railway  to  fall  into  our  possession. 

* ♦ ♦ 

“Although  the  Chinese  Government  holds  that  under  the 
present  condition  the  Shantung  Railway  can  not  be  utilized 
by  the  German  troops  in  view  of  its  severance  with  China, 
yet  from  the  attacking  troops’  point  of  view,  the  railway 
being  immediately  behind  Tsingtao,  and  in  view  of  the  pres- 
ent situation,  it  is  a serious  danger  to  the  military  operation 
to  leave  a railway  by  the  enemy  perfectly  free.”^* 

It  can  be  seen,  from  these  extracts  of  the  official  corre- 
spondence, that  what  China  strove  for  was  the  preservation  of 
her  neutrality,  and  that  what  Japan  aimed  at  was  not  only 
the  leased  territory  of  Kiaochow,  but  also  the  Kiaochow- 
Chinan  Railway  with  the  adjoining  mines,  though  lying  within 
Chinese  neutral  territory.  Such  facts  can  not  but  compel  a 
reasonable  and  impartial  mind  to  declare  that  Japan,  in  gain- 
ing control  of  the  Kiaochow-Chinan  Railway  and  the  adjoining 
mines,  evidently  violated  the  neutrality  of  China. 


14.  .Japanese  Minister  at  Peking  to  the  Chinese  Ministry  of  For- 
eign Affairs,  Oct.  2,  1914,  The  Shantung  Question,  Ibid.,  pp. 
59-60. 


13 


This  conclusion  is  all  the  more  convincing  and  inescapable, 
when  the  rules  governing  the  inviolability  of  neutral  terri- 
tory as  summarized  by  John  Bassett  Moore  are  taken  into 
consideration: 

“ . . .It  appears  (1)  that  the  commission  of  hostility 
against  another  on  neutral  territory  is  a violation  of  the  law 
of  nations ; (2)  that  such  violation  involves  an  offense  to 
the  neutral  nation,  and  that  reparation  from  the  offending 
belligerent  is  due  to  that  nation  alone;  (3)  that,  if  property 
was  captured,  it  is  the  duty  of  the  offending  belligerent  to 
restore  it  on  the  demand  of  the  neutral ; (4)  that  nations 
have,  by  numerous  treaties,  pledged  themselves  as  neutrals 
and  to  use  ‘all  the  means  in  their  power’  to  protect  or  effect 
the  restitution  of  property  in  such  cases;  but  (5)  that  the 
manner  in  which  this  obligation  must  be  discharged  was 
not  ascertained  by  any  express  rule  or  by  any  general  un- 
derstanding.” 

Applying  these  rules  to  Japan’s  seizure  of  the  German 
Kiaochow-Chinan  Railway  and  the  adjoining  mines  lying 
within  the  Chinese  neutral  territory  outside  the  leased  area, 
it  is  clear  that  she  violated  China’s  neutrality  and  that  in  con- 
sequence she  is  under  obligation,  upon  the  demand  of  China, 
to  restore  the  same. 

We  next  come  to  the  issue  whether  China’s  declaration  of 
war  abrogates  all  the  treaties  of  whatever  nature,  thus  legal- 
izing China’s  recovery  of  Germany’s  former  concessions  in 
Shantung.  The  writers  on  international  law  are  not  agreed 
as  to  whether  war  abrogates  all  treaties  which  pre-suppose 
the  continuance  of  peace,  except  those  made  in  anticipation 
of  rupture.i®  Like  Vattel,  Kent  contends  that  “as  a general 
rule,  the  obligations  of  treaties  are  dissipated  by  hostility, 
and  they  are  extinguished  and  gone  forever,  unless  revived 
by  a subsequent  treaty.  But  if  a treaty  contain  any  stipula- 
tions which  contemplate  a state  of  future  war,  and  make 


15.  J.  B.  Moore,  International  Law  Digest,  Vol.  7,  p.  1101. 

16.  Ibid,  Vol.  5,  p.  384. 


14 


provisions  for  such  an  exigency,  they  preserve  their  force 
and  obligation  when  the  rupture  takes  place.”  On  the  other 
hand,  Fiore  says : “The  extinction  of  all  treaties  and  con- 
ventions concluded  between  the  belligerent  states  can  not 
be  deemed  an  immediate  effect  of  war,  but  only  the  termina- 
tion of  those  which,  by  their  nature  and  object,  are  necessarily 
inconsistent  with  a state  of  war.” 

Another  reasonable  doctrine  is  that  of  Calvo,  which 
states  “The  solution  of  these  questions  depends  naturally 
upon  the  particular  character  of  the  engagements  contracted. 
Thus  all  are  agreed  in  admitting  the  rupture  of  conventional 
ties  concluded  expressly  with  a view  to  a state  of  peace,  of 
which  special  object  is  to  promote  relations  of  harmony  be- 
tween nation  and  nation,  such  as  treaties  of  amity,  of  alli- 
ance, and  other  acts  of  the  same  nature  having  a political 
character.  As  to  customs  and  postal  arrangements,  conven- 
tions of  navigation  and  commerce,  and  agreements  relative  to 
private  interests,  they  are  generally  considered  as  suspended 
till  the  cessation  of  hostilities.  By  necessary  consequence,  it 
is  a principle  that  every  stipulation  written  with  reference  to 
war,  as  well  as  all  clauses  described  as  perpetual,  (quali- 
fices  de  perpetuelles)  preserve  in  spite  of  the  outbreak  of 
hostilities  their  obligatory  force  so  long  as  the  belligerents 
have  not,  by  common  accord,  annulled  them  or  replaced  them 
with  others.” 

John  Bassett  Moore  presented  his  own  conclusion  on  the 
subject  as  follows:  “It  is  evident  that  . . . there  was  a re- 
cognition of  the  principle,  which  is  now  received  as  funda- 
mental, that  the  question  whether  the  stipulations  of  a treaty 
are  annulled  by  war  depends  upon  their  intrinsic  character. 


17.  Kent,  Comm.  I,  170,  cited  in  ,1.  B.  Moore,  Vol.  5,  p.  385n. 

18.  Fiore’s  Internatl.  I.aw  Codified,  translated  l)y  E.  M.  Bor- 
ehard,  p.  538. 

19.  Calvo,  Droit  Int.  (4tli  Ed.)  IV,  65,  see.  1931,  cited  in  J.  B. 
Moore,  Vol.  5,  p.  385. 


15 


If  they  relate  to  a right  which  the  outbreak  of  war  does  not 
annul,  the  treaty  itself  remains  unannulled.” 

Taking  as  our  criterion  the  conclusion  of  Moore  that  the 
question  as  to  whether  the  stipulations  of  a treaty  are  an- 
nullel  by  war  depends  upon  their  intrinsic  character,  it  is  evi- 
dent that  the  treaties  in  question  are  of  an  intrinsic  character 
which  the  war  should  nullify.  The  German  lease  convention 
of  March  6,  1898,  was  extorted  from  China  by  the  threat 
of  the  mailed  fist.  It  further  alienated  from  China  her 
jurisdiction  over  the  leased  territory  for  ninety-nine  years. 
In  the  event  of  war,  the  continuance  of  an  alien  jurisdiction 
on  the  soil  of  China  would  be  inimical  to  her  safety,  and  it 
is  but  natural,  therefore,  that  she  should  avail  herself  of  the 
opportunity  of  war  to  remove  that  source  of  danger  and 
recovers  the  delegates,  or  rather  wrested,  rights  of  sovereignty. 
Further,  the  lease  convention  granted  to  Germany  the  right 
of  fortification,  which  meant  that  Germany,  in  time  of  war, 
could  use  the  leased  territory  as  a basis  of  action  against 
China.  It  is  but  plain,  therefore,  that  such  a treaty  should 
not  be  allowed  to  persist  in  time  of  war,  but  should  be  abro- 
gated upon  the  declaration  of  the  same.  As  to  the  Tsingtao- 
Chinan  Railway  and  the  adjoining  mines,  while  the  agree- 
ments thereon  were  not  intrinsically  of  a character  as  not 
incompatible  with  the  status  of  war,  their  public  character 
and  their  strategic  and  political  relations  to  the  safety  of 
China  warranted  their  being  taken  into  custody  by  the  terri- 
torial sovereign  during  the  period  of  war,  and  pending  the 
final  settlement  at  the  peace  negotiation. 

It  can,  therefore,  be  fairly  concluded  that,  inasmuch  as  the 
declaration  of  war  on  the  part  of  China  had  abrogated  the 
lease  convention  of  March  6,  1898,  all  the  German  rights  in 
Shantung  arising  therefrom  should  have  reverted  to  China 


20.  J.  B.  Moore,  Columibia  Law  Review,  Apr.  1901,  Vol.  1,  No. 

4,  pp.  209-223,  pp.  217-8,  .T.  B.  Moore,  Int’natl.  Law  Dig.,.. 
Vol.  5,  p.  383. 


i6 


automatically,  and  that  Japan’s  possession  of  them  from  that 
moment  on  was  in  defiance  and  contravention  of  China’s 
rights.  It  can  also  be  affirmed  that  the  Kiaochow-Tsingtao 
Railway  and  the  adjoining  mines  should  have  come  Into  the 
custody  and  possession  of  China  upon  her  declaration  of  war, 
and  that  Japan’s  control  and  possession  of  the  same  was  not 
only  consummated  in  violation  of  China’s  neutrality,  but  also 
retained  in  defiance  and  contravention  of  China’s  rights. 

We  now  come  to  the  third  issue  whether  Japan’s  possession 
of  the  German  rights  in  Shantung  is  validated  by  the  Treaty 
Df  May  25,  1915,  and  the  Agreement  of  September  24,  1918. 
As  regards  the  consent  which  Japan  exacted  from  China  by 
virtue  of  Article  I of  the  Treaty  of  May  25,  1915,  respecting 
Sbantung,^!  it  must  be  observed  that  the  assent,  as  provided 
therein,  conceding  for  argument  sake  its  validity,  which  is 
contested,  is  not  applicable  to  the  final  settlement  at  the  Paris 
Peace  Conference.  For  the  negotioation  was  not  between 
Germany  and  Japan  as  stipulated  in  the  provision,  but  be- 
tween the  Allied  and  associated  Powers  on  the  one  hand  and 
Germany  on  the  other.  Hence,  inasmuch  as  Japan  was  “de- 
barred from  negotiating  separately  with  Germany  in  respect 
to  the  latter’s  system  in  Shantung  owing  to  the  decision  of 
the  Conference  to  deal  with  German  territories  and  conces- 
sions without  consulting  Germany,”  it  is  evident  that  Japan 
did  not  comply  with  the  provision  of  coming  to  an  agreement 
with  Germany  regarding  the  free  disposal  of  Kiaochow  and 
that  “the  article  in  question  should  be  deemed  inoperatiwe.”  ** 

Granting,  however,  for  argument’s  sake,  that  the  settlement 
as  reached  at  the  Paris  Peace  Conference  came  within  the 
scope  of  the  provision,  it  is  to  be  claimed  that  the  consent 
was  not  given  of  China’s  free  will,  but  rather  was  exacted 
under  the  duress  of  the  ultimatum  of  May  7,  1915,  and  the 

21.  The  Chino-Japanese  Negotiations,  op.  cit.  p.  49,  Art.  1. 

Treaty  of  1915  respecting  Shantung. 

22.  The  Shantung  Question,  pp.  17-18. 


17 


demonstration  of  naval  and  military  forces  accompanying  it. 
While  international  law  recognizes  the  validity  of  treaties 
imposed,  even  under  coercion,  by  the  victorious  states  upon 
the  vanquished,  it  is,  nevertheless,  not  within  reason  to  be- 
lieve that  international  law  recognizes  the  validity  of  treaties 
imposed  by  one  friendly  nation  upon  another,  while  in  the 
relation  of  peace  and  amity.  It  is  true  that  “coercion,  while 
invalidating  a contract  produced  by  it,  does  not  invalidate  a 
treaty  so  produced.  Thus  there  can  be  no  question  of  the 
binding  force  of  the  treaty  which  followed  the  French- 
German  War  which  led  to  the  dethronement  of  Napoleon  III, 
though  its  terms  were  assented  to  under  coercion.  The  same 
may  be  said  of  the  consent  of  France  in  the  settlement  en- 
forced by  the  allies  after  Waterloo,  and  so  of  the  treaty  by 
which  Mexico  ceded  California  and  the  adjacent  territory 
to  the  United  States.”  It  is,  nevertheless,  to  be  noted  that 
what  is  recognized  by  international  law  is  the  validity  of 
treaties  made  in  consequence  of  war  though  imposed  neces- 
sarily by  the  victor  on  the  vanquished  under  duress,  and  that 
it  is  not  conceivable  that  international  law,  postulating  as  it 
does  the  fundamental  principles  of  territorial  sovereignty  and 
the  equality  and  independence  of  states,  will  countenance 
and  give  validity  to  an  agreement  or  treaty,  the  consent  to 
which  was  exacted  from  a friendly  nation  in  time  of  peace, 
and  this  in  consequence  of  the  violation  of  the  latter’s  neu- 
trality. Fiore  says,  while  admitting  the  validity  of  treaties 
imposed  by  victorious  states  upon  defeated  in  consequence 
of  war,  “treaties  concluded  between  states  must  be  freely 
assented  to.  Assent  is  not  valid  if  given  by  mistake,  ex- 
torted by  violence  or  obtained  by  fraud.” 

The  official  statement  given  out  by  the  Chinese  Government 
regarding  the  Chino-Japanese  negotiations  of  1915  clearly 
proves  that  China’s  consent  relating  to  the  disposal  of  the 


23.  J.  B.  Moore,  op.  cit.,  Vol.  5,  p.  183.' 

24.  Fiore’s  Int’natl.  Law  Codified,  op.  clt,  p.  332. 

i8 


German  rights  in  Shantung  was  not  freely  and  fully  given, 
but  was  exacted  under  the  duress  of  the  ultimatum  of  May  7, 
1915.  The  statement  records  that  on  February  2,  1915,  at  the 
first  conference,  while  she  consented  in  principle  to  Article  1 
relating  to  the  disposal  of  the  German  rights  in  Shantung, 
China  nevertheless  made  certain  counter-proposals  as  condi- 
tions to  the  grant  of  her  consent,  namely,  Japan’s  pledge  to 
restore  Kiaochow,  China’s  right  to  be  represented  at  the 
negotiations  between  Japan  and  Germany  when  dealing  with 
the  disposal  of  Kiaochow,  the  indemnification  of  China*s 
losses  due  to  Japan’s  operations  within  the  Chinese  terri- 
tory, the  restoration  of  the  control  of  the  Maritime  Customs, 
the  telegraph  and  the  post-offices  in  the  possession  of  Japan, 
the  removal  of  the  Japanese  military  railway  and  telegraph 
lines  and  the  withdrawal  of  Japanese  troops.^® 

Again,  China’s  reply  of  May  1,  1915,  to  Japan’s  revised 
demands  of  April  26,  1915,  while  giving  her  consent  to  any 
settlement  that  Japan  might  reach  with  Germany  at  the  con- 
clusion of  the  war,  the  Chinese  Government  specifically  in- 
serted two  provisions  calculated  to  preserve  the  sovereignty 
of  China  in  Shantung  and  the  leased  territory  and  to  act  as 
conditions  to  the  grant  of  the  consent  in  question : 2®* 

“The  Japanese  Government  declares  that  when  the 
Chinese  Government  give  their  assent  to  the  disposition  of 
interests  above  referred  to,  Japan  will  restore  the  leased 
territory  of  Kiaochow  to  China;  and  further  recognize  the 
right  of  the  Chinese  Government  to  participate  in  the  ne- 
gotiations referred  to  above  between  Japan  and  Germany. 

“The  Japanese  Government  consent  to  be  responsible  for 
the  indemnification  of  all  losses  occasioned  by  Japan’s  mili- 
tary operation  around  the  leased  territory  of  Kiaochow. 
The  customs,  telegraphs  and  postoffices  within  the  leased 
territory  of  Kiaochow  shall,  prior  to  the  restoration  of  the 
said  leased  territory  to  China,  be  administered  as  hereto- 
fore for  the  time  being.  The  railways  and  telegraph  lines 


25.  The  Chino-Japanese  Negotiations,  op.  cit.,  p.4-5. 
25a  Ibid,  p.  36. 


19 


erected  by  Japan  for  military  purposes  are  to  be  removed 
forthwith.  The  Japanese  troops  now  stationed  outside 
the  original  leased  territory  of  Kiaochow  are  now  to  be 
withdrawn  first,  those  within  the  original  leased  territory 
are  to  be  withdrawn  on  the  restoration  of  the  said  leased 
territory  to  China.” 

Japan’s  ultimatum  of  May  7,  1915,  contains  a reference 
to  these  conditions  as  set  forth  by  China  which  proves 
beyond  doubt  that,  except  for  the  duress  or  coercion  of  the 
ultimatum,  China  would  not  have  consented  to  Japan’s  set- 
tlement with  Germany  regarding  the  disposal  of  the  German 
rights  in  Shantung  at  the  conclusion  of  the  war,  and  that 
it  was  the  duress  exerted  by  the  ultimatum  that  caused  the 
Chinese  Government  to  relinquish  the  proposed  conditions 
and  to  accept  Japan’s  formula  for  the  consent  without  any 
qualification.  The  ultimatum  ran  in  part  as  follows;*® 

“Furthermore,  the  Chinese  Government  not  only  ignored 
the  friendly  feelings  of  the  Imperial  Government  in  offering 
the  restoration  of  Kiaochow  Bay,  but  also  in  replying  to 
the  revised  proposals  they  even  demanded  its  uncondi- 
tional restoration ; and  again  China  demanded  that  Japan 
should  bear  the  responsibility  of  paying  indemnity  for  all 
the  unavoidable  losses  and  damages  resulting  from  Japan’s 
military  operations  at  Kiaodiow;  and  still  further  in  con- 
nection with  the  territory  of  Kiaochow  China  advanced 
other  demands  and  declared  that  she  has  the  right  of  par- 
ticipation at  the  future  Peace  Conference  to  be  held  be- 
tween Japan  and  Germany.  Although  China  is  fully  aware 
that  the  unconditional  restoration  of  Kiaochow  and  Japan’s 
responsibility  of  indemnification  for  the  unaovidable  loSses 
and  damages  can  never  be  tolerated  by  Japan,  yet  she  pur- 
posely advanced  these  demands  and  declared  that  their  reply 
was  final  and  decisive.” 

It  can  therefore  be  safely  said  that,  except  for  the  duress 
of  the  ultimatum  with  the  accompanying  demonstration  of 
force,*’  China  would  not  have  given  up  these  conditions  and 


26.  Ibid  pp.  40-41. 

27.  Hearings  before  the  Committee  on  For.  Rel.,  U.  S.  Sen.,  66 
Cong.  1st  Ses.  Sen.  Document  No.  106  on  Treaty  of  Peace 
with  Germany  signed  at  Versailles  on  June  28,  1910,  pp.  561 
to  562,  testimony  of  Mr.  Ferguson. 

20 


that  it  was  the  coercion — and  coercion  applied  to  a friendly 
nation  while  in  the  relations  of  peace  and  amity, — that  ex- 
torted the  consent.  It  is  also  obviously  in  accordance  with 
the  spirit  of  international  law  to  maintain  that  such  a consent 
obtained  under  duress  or  coercion  should  invalidate  Japan’s 
possession  of  the  former  German  rights  in  Shantung. 

Adverting  to  whether  the  agreement  of  September  24, 
1918,  validates  Japan’s  control  over  the  Kiaochow-Chinan 
Railway,  Article  6 of  which  provides : 

“The  Kiaochow-Chinan  Railway,  after  its  ownership  is 
definitely  determined,  is  to  be  made  a Chino-Japanese  joint 
enterprise,” 

and  Article  4 of  which  stipulates: 

“Japanese  are  to  be  employed  at  the  headquarters  of  the 
above  mentioned  police  force  at  the  principal  railway  sta- 
tions and  at  the  police  training  school,” 
the  opinion  must  be  expressed  that  in  view  of  the  illegal 
consideration  for  which  the  agreement  was  made,  the  agree- 
ment in  question  can  not  forestall  China’s  claims  to  her  own 
rights  and  validate  Japan’s  possession  of  the  German  rights  in 
Shantung.  While  it  is  true  that  “a  consideration  is  essential 
to  give  effect  to  a contract,  but  it  is  possible  to  conceive  of  a 
treaty  which  has  no  consideration,”^'*  it  is,  nevertheless,  rea- 
sonable to  believe  that  international  law,  upholding  as  it  does 
the  fundamental  principle  of  territorial  sovereignty,  will  not 
be  prone  to  countenance  the  validity  of  a treaty,  which  was 
exacted  on  the  basis  of  an  illegal  consideration  arising  out 
of  the  violation  of  the  fundamental  principle  of  territorial 
sovereignty.  For  the  Agreement  of  September  24,  1918,  was 
concluded  on  the  part  of  China  to  induce  the  withdrawal  of 
Japan’s  civil  administration  established  in  Shantung  in  viola- 
tion of  China’s  sovereignty.  It  is  an  accepted  principle  that 
civil  administration  proceeds  out  of,  and  usually  follows,  mili- 

28.  The  Shantung  Question,  pp.  67-68. 

29.  J.  B.  Moore,  op.  cit.,  Vol.  5,  p.  183. 


21 


tary  occupation,  but,  in  this  particular  case,  the  military  occu- 
pation was  accomplished  in  violation  of  China’s  neutrality 
and  sovereignty  as  shown  above,  and  hence  the  civil  admin- 
istration proceeding  out  of,  and  following,  an  illegal  military 
occupation  can  not  but  be  illegitimate. 

The  official  Chinese  claims  at  the  Paris  Peace  Conference 
recorded : 

“Under  an  imperial  ordinance  No.  175  of  October  1,  1917, 
the  Japanese  Government  established  a Civil  Administration 
at  Tsingtao  with  branches  at  Fantze,  Chantien,  and  Chinan, 
and  of  which  three  cities  are  situated  along  the  railway 
outside  of  the  leased  territory,  and  of  the  fifty  kilometre 
zone.  . . . The  Fantze  branch  of  the  Japanese  Civil 

Administration  has  even  asserted  jurisdiction  in  lawsuits 
between  Chinese  and  has  levied  taxes  on  them.  . . 

It  was  because  of  this  illegal  establishment  of  civil  admin- 
istration in  consequence  of  a military  occupation  done  in 
violation  of  China’s  neutrality  and  sovereignty,  and  the  con- 
sequent indignation  of  the  Chinese,  especially  the  Shantung 
people,  that  the  Chinese  Government  was  constrained  to  agree 
with  Japan  for  the  Chino-Japanese  joint  administration  of 
the  Kiaochow  Railway  and  the  Japanese  supervision  of  the 
railway  police  thereof  in  exchange  for  the  withdrawal  of 
Japan’s  civil  administration.®^.®^  Hence,  inasmuch  as  the 
consideration  for  which  the  agreement  was  made  was  illegal 
and  in  fact  in  direct  violation  of  China’s  territorial  sov- 
ereignty, the  agreement  of  September  24,  1918,  can  not  vali- 
date Japan’s  control  over  the  Kiaochow-Chinan  Railway.  Or 
else  Japan’s  violation  of  China’s  neutrality  and  sovereignty, 
instead  of  being  discouraged  by  proper  penalties,  would  be 
encouraged  and  condoned  by  substantial  rewards  which  is 
contrary  to  the  spirit  of  international  law.®® 

30.  The  Shantung  Question,  p.  42. 

31.  Ibid,  p.  42. 

32.  Cf.  Statements  by  the  Chinese  Peace  Delegation,  May  3,  1919, 
Millard's  Review  Supp.  July  17,  1920,  p.  10. 

33.  Hearings,  op.  cit.,  pp.  444-5,  Mr.  T.  F.  Millard’s  testimony. 


22 


It  may  be  argued  that,  in  connection  with  the  agreement, 
on  the  same  date,  an  advance  of  twenty  million  yen  was 
made  for  the  construction  of  the  Chinan-Shunteh  and  Kaomi- 
Hsuchow  Railways  and  that  another  advance  of  a similar 
amount  was  made  for  the  construction  of  four  railways  in 
Manchuria  and  Mongolia;  hence  China  was  estopped  from 
making  any  objection  to  the  agreement  of  September  24,  1918, 
respecting  the  Kiachow-Chinan  Railway.  It  is  true  that  on 
the  same  date  two  other  separate  and  independent  agree- 
ments were  signed  for  the  construction  of  the  above-men- 
tioned railways,  and  it  is  also  true  that  the  Chinese  Govern- 
ment received  a total  advance  of  forty  million  yen.  As  far 
as  the  two  agreements  are  concerned  regarding  the  construc- 
tion of  the  railways  in  question,  they  may  stand  valid.  It  is, 
nevertheless,  to  be  noted  that  the  agreement  of  September 
24,  1918,  respecting  the  control  of  the  Kiaochow  Railway, 
was  entirely  separate  and  independent  from  the  other  two, 
and  was  made  not  in  consideration  of  the  two  advances  of 
twenty  million  yen  each,  nor  for  the  consideration  of  Japan’s 
construction  of  the  two  railways  in  Shantung  and  the  four 
railways  in  Manchuria  and  Mongolia,  buf  rather  in  consid- 
eration of  the  withdrawal  of  Japan’s  civil  administration  and 
Japanese  troops  along  the  Kiaochow-Chinan  Railway  (except 
a contingent  at  Chinan),  which,  as  we  have  seen,  was  illegal. 
The  only  fact  in  common  between  this  illegal  agreement 
and  the  other  agreements  for  which  the  two  advances 
had  been  received  was  that  they  were  concluded  and  signed 
on  the  same  day  of  September  24,  1918.  Beyond  this,  there 
was  no  relation  between  these  agreements.®*  Hence,  inas- 
much as  the  two  advances  of  twenty  million  yen  each  were 
made  in  connection  with  the  other  agreements,  that  of  Sep- 
tember 24,  1918,  respecting  the  control  of  the  Kiaochow- 
Chinan  Railway,  still  remains  invalid  and  therefore  does  not 


34.  For  the  text  of  the  agreement,  see  The  Shantung  Question, 
op.  clt.,  pp.  66-70. 


23 


confer  upon  Japan  any  title  or  right  of  possession  and  control 
with  respect  to  the  Kiaochow-Chinan  Railway. 

Summarizing  the  conclusions  we  have  so  far  reached  re- 
lating to  the  issues  of  the  Shantung  question,  it  can  be  said 
that,  while  admitting  the  ground  for  an  honest  difference  of 
opinion  relative  to  her  right  to  attack  Kiaochow,  Japan  had 
no  right  to  land  her  troops  at  Lungkow  and  march  through 
Chinese  neutral  territory  and  seize  the  German  Kiaochow- 
Chinan  Railway  and  the  adjoining  mines,  in  violation  of 
China’s  neutrality  and  sovereignty;  that  China’s  declaration 
of  war  did  abrogate  the  lease  convention  of  March  6,  1898, 
and  thus  automatically  regained  the  former  German  conces- 
sions arising  out  of  the  convention  and  entitled  her  to  the 
custody  and  possession  of  the  Kiaochow-Chinan  Railway  and 
the  adjoining  mines,  pending  the  final  settlement  at  the  Peace 
negotiation ; and  that  Japan’s  possession  of  the  German  rights 
in  Shantung  was  not  validated  by  the  consent  relative  to  Ja- 
pan’s settlement  with  Germany  as  to  the  disposal  of  the  German 
rights  in  Shantung  as  embodied  in  Article  I of  the  Treater 
of  May  25,  1915,  respecting  the  Province  of  Shantung,  which 
consent,  as  we  have  seen,  was  extorted  under  the  duress  of 
an  ultimatum;  nor  was  it  justified  by  the  Agreement  of  Sep- 
tember 24,  1918,  respecting  adjustment  of  questions  concern- 
ing Shantung,  which,  as  we  recall,  was  contracted  for  an 
illegal  consideration,  that  is,  the  withdrawal  of  Japanese 
troops  from  the  Kiaochow-Chinan  Railway  and  of  the  Japa- 
nese civil  administration  from  Shantung,  both  of  which  were 
illegally  established.  In  view  of  these  conclusions,  we  can 
not  but  be  constrained  to  reach  the  conclusion  that  Japan 
has  held  the  leased  territory  of  Kiaochow  as  against  the  rights 
of  China  since  China’s  declaration  of  war  on  August  24,  1917, 
and  that  she  has  acquired  the  German  rights  in  the  Kiaochow- 
Chinan  Railway  and  the  adjoining  mines  in  violation  of 
China’s  neutrality  and  sovereignty  and  in  defiance  of  her 
repeated  protests.  Hence,  Japan  is  under  legal  and  moral 


24 


obligation  to  return  to  China  the  leased  territory  of  Kiao- 
chow  and  to  place  in  the  custody  and  possession  of  the 
Chinese  Government  the  German  Kiaochow-Chinan  Railway 
and  the  adjoining  mines,  subject  possibly  to  proper  compensa- 
tion for  Japan’s  service  in  the  capture  of  the  leased  territory. 

In  view  of  these  conclusions,  we  affirm  that  the  Shantung 
decision  as  rendered  at  the  Paris  Peace  Conference  by  the 
Council  of  Three  on  April  30,  1919,  was  unjust.  The  Council 
awarded  Japan  all  the  German  rights  in  Shantung,  and,  in 
addition,  the  right  to  officer  the  railway  police  along  the 
Kiaochow-Chinan  Railway,  and  to  establish  a permanent  con- 
cession in  Tsingtao. 

Articles  156,  157,  158,  of  the  Treaty  of  Peace  with  Ger- 
many, embodying  this  decision,  read : 

“Germany  renounces,  in  favor  of  Japan,  all  her  rights, 
titles  and  privileges — particularly  those  concerning  the  terri- 
tory of  Kiaochow,  railways,  mines  and  submarine  cables — 
which  she  acquired  in  virtue  of  the  treaty  concluded  by  her 
with  China  on  March  6,  1898,  and  of  all  other  arrange- 
ments relative  to  the  Province  of  Shantung. 

“All  German  rights  in  the  Tsingtao-Tsinanfu  Railway, 
including  its  branch  lines  together  with  its  subsidiary  prop- 
erty of  all  kinds,  stations,  shops,  fixed  and  rolling  stock, 
mines,  plant  and  material  for  the  exploitation  of  the  mines, 
are  and  remain  acquired  by  Japan,  together  with  all  rights 
and  privileges,  attaching  thereto. 

“The  German  state  submarine  cables  from  Tsingtao  to 
Shanghai  and  from  Tsingtao  to  Chefoo,  with  all  the  rights, 
privileges  and  properties  attaching  thereto,  are  similarly 
acquired  by  Japan  free  and  clear  of  all  charges  and  encum- 
brances. (Art.  156.) 

“The  movable  and  immovable  property  owned  by  the 
German  state  in  the  territory  of  Kiaochow,  as  well  as  all 
the  rights  which  Germany  might  claim  in  consequence  of 
the  works  or  improvements  made  or  of  the  expenses  incur- 
red by  her,  directly  or  indirectly,  in  connection  with  this 
territory,  are  and  remain  acquired  by  Japan,  free  and  clear 
of  all  charges  and  encumbrances.  (Art.  157.) 

“Germany  shall  hand  over  to  Japan  within  three  months 


25 


from  the  coming  into  force  of  the  present  treaty  the 
archives,  registers,  plans,  title  deeds  and  documents  of 
every  kind,  wherever  they  may  be,  relating  to  the  adminis- 
tration, whether  civil,  military,  financial,  judicial  or  other, 
of  the  territory  of  Kiaochow. 

“Within  the  same  period  Germany  shall  give  particulars  to 
Japan  of  all  treaties,  arrangements  or  agreements  relating 
to  the  rights,  title  or  privileges  referred  to  in  the  two 
preceding  articles.”  (Art.  168.) 

It  will  be  seen  that  the  rights  conferred  upon  Japan  were 
not  those  belonging  to  Germany,  but  those  legitimately  belong- 
ing to  China,  as  we  hold  that  the  German  rights  had  automa- 
tically reverted  to  China  upon  the  declaration  of  war  on  August 
14,  1917.®®  Hence,  the  Council  of  Three  has  awarded  to 
Japan  the  rights,  not  of  Germany,  but  of  China, — not  of  an 
enemy,  but  of  an  ally  or  associate  in  the  war.  As  the  Chinese 
Peace  Delegation  at  Paris  put  it : “It  appears  clear  that  the 
Council  has  been  bestowing  to  Japan  rights,  not  of  Germanv, 
but  of  China,  not  of  the  enemy  but  of  an  ally.  A more 
powerful  ally  has  reaped  benefits  at  the  expense,  not  of  the 
common  enemy,  but  of  a weaker  ally.”  ®® 

What  is  worse,  the  Council  of  Three  has  awarded  these 
legitimate  rights  of  China,  to  Japan — a state  that  has  per- 
petrated the  crime  of  the  violation  of  China’s  neutrality  and 
sovereignty.  Instead  of  requiring  the  offending  state  to  re- 
store the  former  German  rights  to  the  rightful  sovereign 
owner,  which  should  be  the  dictates  of  reason  and  con- 
science, the  Council  condoned  and  encouraged  Japan’s  conduct 
by  awarding  her  the  German  rights  in  Shantung.  The  incon- 
sistency is  all  the  more  glaring,  when  it  is  seen  that,  in  the 
case  of  Germany,  her  violation  of  Belgian  neutrality  was  so 
severely  condemned  and  penalized,  but  in  the  case  of  Japan, 
for  her  violation  of  China’s  neutrality,  especially  in  view  of 


35.  This  declaration  was  officially  presented  to,  and  taken  cogni- 
zance of,  by  the  Allied  and  Associated  Governments — the 
statement  by  the  Chinese  Peace  Delegation,  May  3,  1919,  Mil- 
lard’s Review,  Supp.,  July  17,  1920,  p.  19. 

36.  Statement  by  the  Chinese  Peace  Delegation.  Ibid. 

26 


the  absence  of  any  ground  of  military  necessity,  she  was  not 
only  penalized,  but  on  the  contrary,  awarded  the  rights,  not 
of  Germany,  but  of  China, — a friendly  ally  and  loyal  asso- 
ciate in  the  war.®’ 

It  may,  however,  be  contended,  that,  unjust  as  the  Shan- 
tung decision  might  be,  the  Allied  Powers  were  bound  by  the 
secret  agreements  of  February  and  March,  1917,  to  award 
the  German  rights  in  Shantung  to  Japan.®®  It  must,  never- 
theless, be  observed  that  these  secret  agreements  were  made 
prior  to  the  acceptance  of  Wilson’s  peace  terms  as  set 
forth  in  his  address  to  the  United  States  Congress  on  June 
8,  1918,  and  in  his  subsequent  speeches,  and  hence,  were  ab- 
rogated by  the  subsequent  acceptance  of  Wilson’s  principles 
of  peace.  To  this  effect  the  testimony  was  put  on  record 
before  the  Senate  Committee  on  Foreign  Relations : 

“.  . . On  looking  over  the  addresses  of  President  Wil- 
son and  the  statement  made  by  Secretary  Lansing  to  the 
German  Government  with  regard  to  the  bases  of  peace,  I 
found  this  (reading)  : 

“ ‘The  unqualified  acceptance  by  the  present  German 
Government  and  by  a large  majority  of  the  German 
Reichstag  of  the  terms  laid  down  by  the  President  of 
the  United  States  of  America  in  his  address  to  the  Con- 
gress of  the  United  States  on  the  8th  of  January,  1918, 
and  in  his  subsequent  addresses,  justifies  the  President 
in  making  a frank  and  direct  statement  of  his  decision 
with  regard  to  the  communications  of  the  German  Gov- 
ernment of  the  8th  and  12th  of  October,  1918.’ 

“Now  as  to  the  subsequent  addresses,  although  there  is 
nothing  directly  bearing  upon  the  question  of  the  14  points 
mentioned  in  the  address  of  January  18,  one  of  the  subse- 
quent addresses  was  that  on  the  4th  of  July  at  Washington’s 
Tomb  at  Mount  Vernon  in  which  he  said : 


37.  It  should  be  further  observed  that  inasmuch  as  the  Kiao- 
chow  lease  convention  stipulated  that  Germany  should  en- 
gage not  to  sublet  the  leasehold  to  any  other  state,  the 
Shantung  decision  violated  the  sanctity  of  this  treaty  obli- 
gation. 

38.  For  the  secret  agreements,  see  Millard’s  Review  supp.  July 
17,  1920,  pp.  1-3. 


27 


“ ‘No  half-way  decision  is  conceivable.  These  are  the 
ends  for  which  the  associated  peoples  of  the  world  are 
fighting  and  which  must  be  conceded  them  before  there 
can  be  peace.’ 

“Then  he  mentions,  one,  ‘the  destruction  of  any  arbi- 
trary power  anywhere,  and  so  on,  and  two  is  the  one  to 
which  I want  to  call  attention.  (Reading:) 

“ ‘The  settlement  of  every  question,  whether  of  territory, 
of  sovereignty,  of  economic  arrangement,  or  of  political 
relationship,  upon  the  basis  of  the  free  acceptance  of  that 
settlement  by  the  people  immediately  concerned,  and  not 
upon  the  basis  of  the  material  interest  or  advantage  of 
any  other  nation  dr  people  which  may  desire  a different 
settlement  for  the  sake  of  its  own  exterior  influence  or 
mastery.’ 

“I  think  it  was  in  this  memorandum  to  the  President  that 
I mentioned  this  point.  I can  not  say  positively  that  it 
was  in  that  or  some  other  connection  that  I called  attention 
to  this  statement  and  said  that  my  understanding  was  that 
all  the  powers  who  entered  into  the  agreement  for  the 
negotiation  of  peace  after  the  armistice  of  November  11 
practically  accepted  the  bases  of  peace  as  laid  down  by  the 
American  Government  and  that  this  was  one  of  the  bases 
of  peace,  and  that  no  exception,  no  reservation,  had  been 
made  to  this  by  any  of  the  powers,  by  Great  Britain, 
France,  or  Japan,  although  Great  Britain  did  make  reser- 
vations with  regard  to  some  other  things,  and  that  there- 
fore it  seemed  to  me  that  any  prior  arrangement  such  as 
these  secret  treaties  between  Great  Britain  and  Japan  and 
between  France  and  Japan  ought  not  to  be  held  any  longer 
in  force  because  they  were  really  abrogated  by  the  accept- 
ance of  these  bases  of  peace.’’®® 

It  may  be  further  contended  that  the  Shantung  decision  in 
favor  of  Japan  was  necessary  to  prevent  Japan’s  leaving 
the  Paris  Peace  Conference  and  thus  to  save  the  League  of 
Nations  just  on  the  eve  of  formation.  In  fact,  that  was  the 
opinion  of  Wilson,  and  probably  the  real  reason  for  his  de- 
cision.^® It  must,  however,  be  considered  that  the  fear  of 


39.  Hearings,  op.  cit.,  pp.  622  to  623,  the  testimony  of  Professor 
E.  T.  Williams. 

40.  Cf.  Hearings,  Conference  at  White  House,  Aug.  19,  1919,  pp. 
531-2. 

28 


Japan’s  withdrawal  from  the  Conference  or  refusal  to  sign 
the  Treaty  was  not  well  founded.  It  is  unlikely  that  Japan 
would  exclude  herself  from  the  League  for  the  loss  of  the 
former  German  rights  in  Shantung.  Secretary  Lansing  testi- 
fied before  the  Senate  Committee  on  Foreign  Relations  that 
he  believed  Japan  would  have  signed  the  Treaty  even  though 
the  decision  should  have  been  against  her,  the  main  considera- 
tion being  membership  in  the  League : 

“Senator  Johnson  of  California:  Would  the  Japanese 
signatures  to  the  League  of  Nations  have  been  obtained  if 
you  had  not  made  the  Shantung  agreement? 

“Secretary  Lansing:  I think  so. 

“Senator  Johnson  of  California:  You  do? 

“Secretary  Lansing:  I think  so. 

“Senator  Johnson  of  California:  So  that  even  though 
Shantung  had  not  been  delivered  to  Japan,  the  League  of 
Nations  would  not  have  been  injured? 

“Secretary  Lansing:  I do  not  think  so. 

“Senator  Johnson  of  California:  And  you  would  have 
had  the  same  signatories  that  you  have  now? 

“Secretary  Lansing:  Yes;  one  more,  China. 

“Senator  Johnson  of  California:  One  more,  China.  So 
that  the  result  of  the  Shantung  decision  was  simply  to  lose 
China’s  signature  rather  than  to  gain  Japan’s? 

“Secretary  Lansing : That  is  my  personal  view,  but  I may 
be  wrong  about  it.’’ 

Granted  for  argument’s  sake  that  there  was  real  danger 
of  Japan’s  leaving  the  Conference  or  refusing  to  become  a 
member  of  the  League,  it  is  manifest  that  the  decision  was 
rendered  on  the  ground  of  expediency  rather  than  that  of 
intrinsic  justice.  While  it  is  admitted  that  expediency,  when 
not  involving  questions  of  morality,  may  become  a guiding 
principle  of  statesmanship,  it  must  be  maintained,  neverthe- 
less, that  when  moral  issues  are  involved,  expediency  must 
be  subordinated  to  morality.  In  other  words,  in  life  as  well 
as  in  statesmanship,  morality  must  reign  supreme,  notwith- 
standing considerations  of  expediency. 

41.  Hearings,  Senate  Doc.,  No.  106,  op.  cit.,  p.  182. 


29 


Passing  from  the  injustice  of  the  Shantung  decision,  we 
now  come  to  consider  Japan’s  policy  in  relation  to  Shantung. 
In  the  statement  of  Wilson,  August  6,  1919,^^  the  policy  of 
Japan  relative  to  Shantung  was  said  to  be  as  follows : 

“The  policy  of  Japan  is  to  hand  back  the  Shantung 
Peninsula  in  full  sovereignty  to  China,  retaining  only  the 
economic  privileges  granted  to  Germany,  and  the  right  to 
establish  a settlement  under  the  usual  conditions  at  Tsintao. 

"The  owners  of  the  railway  will  use  special  police  only 
to  insure  security  for  traffic.  They  will  be  used  for  no 
other  purpose. 

“The  police  force  will  be  composed  of  Chinese,  and  such 
Japanese  instructors  as  the  directors  of  the  railway  may 
select  will  be  appointed  by  the  Chinese  Government.” 
Taking  this  as  the  policy  of  Japan,  it  will  be  noticed  that 
Japan  presumed  to  have  in  her  possession  the  sovereignty  of 
Shantung  which  she  had  in  no  way  acquired,  and  which  was 
expressly  reserved  in  the  lease  convention  of  March  6,  1898. 
Whatever  sovereignty  is  now  in  her  possession  must  have 
been  acquired  in  violation  of  China’s  neutrality  and  sove- 
reignty. And  yet  Japan  pledges  to  return  Shantung  to  China 
m full  sovereignty.  That  is,  Japan  proposes  to  return  some- 
thing to  China  which  by  right  is  not  hers  but  China’s. 

Probably  what  she  meant  by  the  sovereignty  of  Shantung 
is  the  leased  territory  of  Kiaochow,  which  she  proposed  to 
return,  and,  in  fact,  pledged  to  do  so.  If  so,  then,  as  we 
have  seen,  inasmuch  as  China’s  declaration  of  war,  on  August 
14,  1917,  abrogated  the  lease  convention  of  March  6,  1898, 
and  hence  recovered  to  herself  the  rights  of  the  leased  terri- 
tory, Japan  is  proposing  to  return  something  to  China  which 
by  right  belongs  to  China  and  which  Japan  has  held,  ever 
since  the  day  of  China’s  declaration  of  war,  in  contravention 
of  the  sovereign  rights  of  China. 

It  will  be  further  noticed  that  the  second  part  of  Japan’s 


42.  N.  Y.  Times,  Aug.  7,  1919;  Millard’s  Review,  Supp,  July  17, 
1920,  p.  16;  also  see  Chas.  B.  Elliott,  The  Shantung  Question, 
American  Journal  of  Internatl.  Law,  Vol.  13,  1919,  pp.  728. 


30 


policy  is  to  retain  all  German  economic  concessions  in  Shan- 
tung, including  the  Kiaochow-Chinan  Railway  and  the  ad- 
joining mines.  It  is  needless  to  point  out  again  that  these 
economic  concessions  have  been  seized  and  retained  by  Japan 
in  violation  of  China’s  neutrality  and  in  defiance  of  China’s 
repeated  protests,  and  that  since  China’s  declaration  of  war 
they  should  have  been  in  the  custody  and  possession  of 
China,  pending  final  settlement  with  Germany  at  the  Peace 
negotiation,  and  that  Japan  is  under  moral  and  legal  obliga- 
tions to  restore  the  same  to  China.  And  yet  Japan  proposes 
to  retain  these  ill-gotten  concessions. 

Again,  Japan  plans  to  establish  a railway  police  along  the 
Kiaochow-Chinan  Railway  officered  by  the  Japanese  though 
manned  by  the  Chinese,  basing  her  right  to  do  so  on  the 
Agreement  of  September  24,  1918,  respecting  adjustment  of 
questions  concerning  Shantung.  As  has  been  already  shown, 
the  agreement  in  question  is  void  or  voidable,  because  of  its 
illegal  consideration.  Besides,  the  right  of  police  is  in  excess 
of  the  former  German  rights  in  Shantung.  In  the  agreement 
of  March  21,  1900,  respecting  the  Kiaochow-Chinan  Railway 
regulations,*^  it  was  specifically  stipulated  (Art.  16)  : 

“If  troops  are  needed,  outside  of  the  hundred  li  (50  kilo- 
metres) zone,  they  shall  be  despatched  by  the  Governor  of 
the  Province  of  Shantung.  No  foreign  troops  may  be  em- 
ployed for  this  purpose.” 

In  the  subsequent  convention  of  November  28,  1905,**  Ger- 
many engaged  to  withdraw  her  troops  from  Kiaochow  and 
Raomi  to  Tsingtao  (Arts.  1 and  2)  ; and  to  leave  the  neutral 
zone  and  railway  to  the  police  of  the  Chinese  Government. 
Hence,  in  view  of  the  limitations  of  the  German  rights  in 
Shantung,  Japan’s  claim  to  establish  railway  police  along 
the  Kiaochow-Chinan  Railway  is  in  excess  of  the  German 
rights  and  in  violation  of  China’s  sovereignty. 


43.  The  Shantung  Question,  pp.  50-54. 

44.  Ibid  pp.  54-56. 


31 


The  political  significance  of  the  Shantung  question  can  not 
be  overestimated.  This  question  represents  the  historic  issue 
of  the  struggle  between  the  Chinese  nation  and  the  foreign 
powers,  the  issue  of  territorial  sovereignty.  Ever  since  her 
opening,  China  was  confronted  with  the  greatest  problem 
of  all  her  history — that  is,  how  to  preserve  her  territorial 
integrity  and  political  independence  in  the  face  of  foreign 
aggression.  She  attempted  to  solve  this  great  problem  by 
the  Boxer  Uprising  in  1900,  which  only  plunged  her  into  the 
depths  of  humiliation.  Failing  in  this,  she  brought  to  pass 
the  Chinese  Revolution  of  1911,  aiming  to  take  hold  of  the 
reins  of  government  and  thus  to  establish  a strong  and  stable 
government  for  her  own  protection.  Now  this  Shantung 
question  represents  foreign  aggression  or  encroachment  on 
the  territorial  sovereignty  of  China,  which  she  aims  to  up- 
hold under  the  aegis  of  the  Republic.  Hence,  in  resisting 
Japan’s  aggression  in  Shantung,  China  is  simply  following 
the  tradition  of  her  historical  development.  To  win  in  the 
Shantung  question  is  to  succeed  in  the  assertion  and  main- 
tenance of  her  territorial  sovereignty.  To  fail  is  to  acknowl- 
edge servitude.  Hence,  the  Shantung  question  will  become 
the  battle  cry  of  Chinese  nationalism,  and  hence  the  Chinese 
people,  determined  as  they  are  to  preserve  their  territory 
and  sovereignty,  will  never  yield  in  the  Shantung  affair. 

Again  ,this  question  represents  the  conflict  of  Japan’s  poli- 
cies in  China  and  China’s  policy  for  herself.  As  we  recall, 
Japan  aims  to  exploit  the  natural  resources  of  China,  and  to 
establish  her  position  of  paramount  influence.  She  also  aims 
to  control  and  dominate  China— by  strengthening  her  influ- 
ence around  and  in  Peking  through  her  dominance  in  Man- 
churia and  Shantung.  On  the  other  hand,  China  strives  for 
self-preservation— for  her  independence  and  sovereignty.  She 
aims  to  preserve  what  she  has,  and  in  addition,  to  recover 
her  lost  or  delegated  rights  of  sovereignty.  Hence  the  Shan- 
tung question  represents  the  conflict  of,  the  policies  of  the 
two  nations. 


32 


. Further,  the  Shantung  question  involves  the  sanctity  of 
international  law,  the  maintenance  of  which  constituted  one  of 
the  objects  of  the  World  War.  It  raises  the  question  as  to 
whether  the  nations  are  to  observe  the  principles  of  inter- 
national law,  or  are  to  relapse  into  anarchy.  If  they  mean 
to  uphold  the  sanctity  of  international  law,  they  must  right 
the  wrong  done  in  the  Shantung  decision.  Hence,  the  suc- 
cessful and  right  solution  of  the  Shantung  question  means 
the  vindication  of  the  sanctity  of  international  law. 

Finally,  the  Shantung  question  represents  the  moral  issue 
of  might  versus  right.  By  virtue  of  her  military  and  naval 
forces,  Japan  has  acquired  the  German  rights  in  Shantung 
in  evident  violation  of  China’s  neutrality  and  sovereignty. 
On  the  other  hand,  because  of  the  insufficient  backing  of 
force,  China  has  failed  to  recover  the  rights  which  should 
have  properly  belonged  to  her.  If  Japan  wins  eventually 
in  the  Shantung  question,  it  means  an  unfortunate  reaffirma- 
tion of  the  principle  of  “Might  makes  right.”  On  the  other 
hand,  if  China  wins,  it  is  a successful  vindication  of  the  prin- 
ciple of  “Right  makes  might” 

As  to  remedies  for  the  Shantung  question,  there  are  only 
three.  First,  Japan  may  change  her  policy  and  thus  the 
Shantung  question  may  be  successfully  solved.  But  this  is 
scarcely  expected,  at  least  in  the  immediate  future.  She  will 
stand  by  the  agreement  of  September  24,  1918,  and  the  Treaty 
of  May  25,  1915,  or  still  better,  the  original  Twenty-one 
Demands.  She  will  also  stand  by  the  Shantung  decision  as 
embodied  in  Articles  156,  157,  158,  of  the  Treaty  of  Peace 
with  Germany,  which  gives  a legal  sanction  to  her  position 
in  Shantung.  It  is  therefore  reasonable  to  expect  that,  in 
the  absence  of  other  adequate  remedies,  Japan  will  not  likely 
yield  in  the  Shantung  question  in  any  substantial  way,  unless 
and  until  she  changes  her  policy  toward  China  as  a whole. 

The  second  remedy  is  the  League  of  Nations,  or  Conference 
of  Powers.  Will  the  League  or  Conference  reconsider  the 


33 


question  and  right  the  wrong  of  the  Shantung  decision? 
That  is  the  question  which  few  will  dare  to  answer.  Be  it 
as  it  may,  it  is  within  reason  to  believe,  however,  that  the 
League  or  Washington  Conference  will  have  to  take  into  con- 
sideration the  pride  and  honor  of  Japan,  for  the  maintenance 
of  which  Japan  will  do  all  in  her  power  to  prevent  a recon- 
sideration of  the  question.  It  is  also  reasonable  to  expect 
that  in  case  of  a renewal  of  the  Anglo-Japanese  Alliance, 
unless  Great  Britain  is  released  from  obligation,  she  will  be 
obligated  to  support  Japan  in  the  Conference  or  in  the  Coun- 
cil and  the  Assembly,  which  means  that,  in  the  case  of  the 
League,  China  can  not  get  a unanimous  report  or  recom- 
mendation from  the  Council  or  a report  or  recommendation 
from  the  Assembly  concurred  in  by  all  the  members  repre- 
sented in  the  Council  and  a majority  of  the  other  members, 
exclusive  in  each  case  of  the  parties  to  the  dispute,  which  is 
requisite  to  give  the  report  or  recommendation  the  sanction 
of  the  League,  in  case  one  party  chooses  to  comply  therewith. 

The  third  remedy  is  that  China  should  become  strong  her- 
self, and  thus  cause  Japan  to  respect  her  rights.  This  seems 
to  be  the  shortest  as  well  as  the  noblest  way,  to  a solution 
of  the  question.  For  Japan’s  action  in  Shantung  is  based  on 
the  inability  of  China  to  uphold  her  rights.  As  soon  as 
Japan  sees  that  China  is  able  to  do  so,  rather  than  run  the 
gauntlet  of  a conflict  with  her,  Japan  will  yield.  Further, 
Japan’s  policies  toward  China,  it  will  be  remembered,  are 
partly  founded  on  China’s  weakness.  The  minute  China  be- 
comes strong,  the  raisen  d’etre  of  some  of  Japan’s  policies 
will  be  eliminated,  and  she  will  surely  change  her  attitude  and 
policy,  in  consequence.  Hence,  in  the  absence  of  a voluntary 
change  of  policy  on  the  part  of  Japan  and  adequate  action 
by  the  League  of  Nations  or  the  Washington  Conference,  the 
remedy  will  lie  in  the  rise  of  a strong  China. 

The  basis  of  solution  of  the  Shantung  question  is  simple. 
Giving  due  recognition  to  Japan’s  service  and  sacrifice  in 


34 


the  capture  of  Kiaochow,  and  paying  due  regard  to  the 
sovereignty  of  China,  the  principle  of  the  solution  should  be, 
on  the  one  hand,  that  as  a recompense  for  her  service  and 
sacrifice,  Japan  should  be  entitled  to  some  form  of  compen- 
sation; and,  on  the  other,  that,  in  full  recognition  of  China’s 
sovereignty,  Japan  should  restore  to  China  all  German  con- 
cessions in  Shantung,  including  the  Kiaochow-Chinan  Rail- 
way, the  adjoining  mines,  and  the  leased  territory,  subject, 
however,  to  the  proviso  that  these  concessions  should  not  be 
mortgaged  or  alienated  by  China  in  any  way  to  any  other 
foreign  power.  Thus  Japan  would  receive  her  due  share  of 
compensation  and  China  would  maintain  her  territorial  sove- 
reignty and  recover  her  rights. 


After  the  foregoing  was  written,  the  Shantung  Question 
entered  upon  a new  stage  of  development,  which  deserves  our 
attention.  On  September  7,  1921,  the  Japanese  Government 
submitted  to  the  Chinese  Government  nine  proposals  as  the 
terms  of  settlement  for  the  dispute.^®  On  October  5,  1921,  the 


45.  Sen.  Hearings,  Sen.  Doc.  No.  106,  op.  cit.,  p.  561,  the 
testimony  of  Mr.  Ferguson. 

46.  Copy  furnished  by  the  Chicago  Daily  News,  dispatch  by  the 
Associated  Press. 

(1)  The  leasehold  of  Kiao  Chau  and  the  rights  originally 
granted  to  Germany  with  regard  to  the  fifty  kilometre  zone 
around  the  Kiao  Chau  Bay  shall  be  restored  to  China. 

(2)  The  Japanese  government  will  abandon  plans  for  the 
establishment  of  a Japanese  exclusive  settlement  or  of  an  open 
international  settlement  in  Tsing  Tao : Provided  that  China 
engages  to  open  of  its  own  accord  the  entire  leased  terri- 
tory of  Kiao  Chou  as  a port  of  trade  and  to  permit  the 
nationals  of  all  foreign  countries  freely  to  reside  and  to 
carry  on  commerce,  industry,  agriculture  or  any  other  lawful 
pursuits  within  such  territory,  and  that  she  further  under- 
takes to  respect  the  vested  rights  of  all  foreigners.  China 
shall  likewise  carry  out  forthwith  the  opening  of  suitable 
cities  and  towns  within  the  province  of  Shantung  for  resi- 
dence and  trade  of  the  nationals  of  all  foreign  countries. 
Regulations  for  the  opening  of  places  under  the  foregoiu.g 
clauses  shall  be  determined  by  the  Chinese  Government  upon 
consultation  with  the  powers  interested. 

(3)  The  Kiao  Chou-Tslnanfu  railway  and  all  mines  appur- 


35 


Chinese  Government  made  the  reply, in  general  rejecting 
the  proposals. 

In  the  first  proposal,  the  leasehold  of  Kiaochow  and  the 
rights  originally  granted  to  Germany  with  regard  to  the 


tenant  thereto  shall  be  worked  as  a joint  Sino-Japanese  en- 
terprise. 

(1:)  Japan  will  renounce  all  preferential  rights  with  re- 
gard to  foreign  assistance  in  persons,  capital  and  material, 
stipulated  in  the  Sino-German  Treaty  of  March  6,  1898. 

(5)  Rights  relating  to  the  extensions  of  the  Kiao  Chou- 
Tsinanfu  railway,  as  well  as  options  for  the  construction  of 
the  yentai-Welhslen  railway  will  be  thrown  open  for  the 
Common  activity  of  the  international  financial  consortium  in 
China. 

(6)  The  status  of  the  custom  house  at  Tsingtao  as  forming 
an  Integral  part  of  the  general  customs  system  of  China  shall 
be  made  clearer  than  under  the  German  regime. 

(7)  Public  property  used  for  administrative  purposes  within 
the  leased  territory  of  Kiao  Chou  will,  in  general,  be  trans- 
ferred to  China ; it  being  understood  that  the  maintenance 
and  operation  of  public  works  and  establishments  shall  be 
arranged  between  the  Japanese  and  Chinese  Governments. 

(8)  With  a view  to  arranging  detailed  plans  for  carrying 
into  effect  the  terms  of  settlement  above  indicated  and  for  the 
purpose  of  adjusting  other  matters  not  embodied  therein,  the 
.Japanese  and  Chinese  Governments  shall  appoint  their  repre- 
sentative commissioners  as  soon  as  possible. 

(9)  The  Japanese  Government  have  on  more  than  one  occa- 
sion declared  willingness  to  proceed  to  the  recall  of  Japanese 
troops  now  stationed  along  the  Kiao  Chou-Tsinanfu  Railway 
upon  organization  by  China  of  a police  force  to  assume 
protection  of  the  railway.  As  soon  as  the  Chinese  Govern- 
ment shall  have  organized  such  a police  force  and  notified 
the  .Japanese  Government  to  that  effect,  Japanese  troops 
will  be  ordered  to  hand  over  to  the  Chinese  police  the  charge 
of  the  railway  protection,  and  thereupon  immediately  to 
withdraw.  It  is,  however,  to  be  understood  that  the  question 
of  the  organization  of  a special  police  guarding  the  Kiao 
Chou-Tsinanfu  railway  sh,all  be  reserved  for  future  consid- 
eration between  Japan  and  China. 

47.  Copy  furnished  by  the  Chinese  I.egatlon,  Washington,  D.  C. 
With  reference  to  the  important  Shantung  Question  which  is 
now  pending  between  China  and  .Japan.  China  has  indeed 
been  most  desirous  of  an  early  settlement  for  the  restitu- 
tion of  her  sovereign  rights  and  territory.  The  reason  why 
China  has  not  until  now  been  able  to  commence  negotiations 
with  Japan  is  because  of  the  fact  that  the  basis  upon  which 
.Japan  claims  to  negotiate  are  all  of  a nature  either  highly 
objectionable  to  the  Chinese  Government  and  the  Chinese 
people,  or  such  to  which  they  have  never  given  their  recog- 
nition. Furthermore,  in  regard  to  the  Shantung  Question, 
although  .Japan  has  made  many  vague  declarations  she  has 


fifty  kilometer  zone  were  to  be  restored  to  China.  This  is 
simply  a reiteration  of  the  pledge  of  restoration  made  in  the 
exchange  of  notes,  May  25,  1915.  In  the  eyes  of  the  Chinese, 
this  proposal  carries  no  more  weight  than  one  to  restore  to 
China  what  by  rights  belongs  to  her.  For  China  regards  the 
leasehold  of  Kiaochow  as  having  been  abrogated  by  her  dec- 
laration of  war  against  Germany  on  August  14,  1915,  and 
as  one  which  should  have  reverted  to  her  possession  on  that 
date.  Hence  the  reply : 

“The  lease  of  Kiao  Chou  expired  immediately  on  China’s 
declaration  of  war  against  Germany.  Now  that  Japan  is 
only  in  military  occupation  of  the  leased  territory  the  latter 


in  fact  had  no  plan  which  is  fundamentally  aecpetable.  There- 
fore the  ease  has  been  pending  for  many  years  much  to  the 
unexpectation  of  China.  On  September  7 Japan  submitted 
certain  proposals  for  the  read.iustment  of  the  Shantung  Ques- 
tion in  the  form  of  a memorandum  together  with  a verbal 
statement  by  the  Japanese  Minister  to  the  effect  that  in  view 
of  the  great  principle  of  Sino-Japanese  friendship  Japan  has 
decided  upon  this  fair  and  just  plan  as  her  final  concession, 
etc.  After  careful  consideration  the  Chinese  Government  feels 
that  much  in  .Japan’s  new  proposals  is  still  incompatible 
with  the  repeated  declarations  of  the  Chinese  Government, 
with  the  hopes  and  expectations  of  the  entire  Chinese  people, 
and  with  the  principles  laid  down  in  treaties  between  China 
and  the  foreign  powers.  If  these  proposals  are  to  be  consid- 
ered the  final  concession  on  the  part  of  Japan,  they  surely 
fall  short  to  prove  the  sincerity  of  Japan’s  desire  to  settle 
the  question.  For  instance : 

(1)  The  lease  of  Kiaochow  expired  immediately  on  China’s 
declaration  of  war  against  Germany.  Now  that  Japan  is 
only  in  military  occupation  of  the  leased  territory  the  latter 
should  be  wholly  returned  to  China  without  conditions. 
There  can  be  no  question  of  any  leasehold. 

(2)  As  to  the  opening  of  Kiaochow  Bay  as  a commercial 
port  for  the  convenience  of  trade  and  residence  of  the  na- 
tionals of  all  friendly  powers,  China  has  already  on  previous 
occasions  communicated  her  intentions  to  do  so  to  the  pow- 
ers, and  there  can  be  no  necessity  for  the  establishment  of 
any  purely  foreign  settlement  again.  Agricultural  pursuits 
concern  the  fundamental  means  of  existence  of  the  people 
of  a country ; and  according  to  the  usual  practice  of  all 
countries,  no  foreigners  are  permitted  to  en.gage  in  them. 
The  vested  rights  of  foreigners  obtained  through  lawful 
processes  under  the  German  Regime  shall  of  course  be  re- 
spected but  those  obtained  by  force  and  compulsion  during 
the  period  of  Japanese  military  occupation  and  against  law 
and  treaties  can  in  no  wise  be  recognized.  And  again  al- 


37 


should  be  wholly  returned  to  China  without  conditions. 
There  can  be  no  question  of  any  leasehold.” 

The  second  proposal  offered  to  surrender  the  claim  to  an 
exclusive  Japanese  settlement  or  an  international  concession 
in  Tsing  Tao  as  was  stipulated  in  the  exchange  of  notes,  May 
25,  1915.  This  abandonment,  however,  was  to  be  made  on 
conditions  that  would  safeguard  the  economic  interests  of 
the  Japanese  and  other  foreigners.  First,  China  was  to  “open 
of  its  own  accord  the  entire  leased  territory  of  Kiaochow  as 
a port  of  trade,”  which  was  also  a reiteration  of  a stipula- 
tion in  the  exchange  of  notes.  May  25,  1915.  Second,  China 
was  “to  permit  the  nationals  of  all  foreign  countries  freely  to 


though  this  same  article  in  advocating  the  opening  of  cities 
and  towns  of  Shantung  as  commercial  ports  agrees  with 
China’s  intention  and  desire  of  developing  commerce,  the 
opening  of  such  places  should  nevertheless  be  left  to  China  s 
own  judgment  and  selection  in  accordance  with  circum- 
stances. As  to  the  regulations  governing  the  opening  of 
such  places,  China  will  undoubtedly  bear  in  mind  the  object 
of  affording  facilities  to  international  trade  and  formulate 
them  according  to  established  precedents  of  self-opened  ports 
and  sees,  therefore,  no  necessity  in  this  matter  for  any  pre- 
vious negotiations. 

(3)  The  joint  operation  of  the  Shantung  Railway,  that  is. 
the  Kiaochow-Tsinan  Line,  by  China  and  .Japan  is  objected 
to  by  the  entire  Chinese  people.  It  is  because  in  all  coun- 
tries there  ought  to  be  a unified  system  for  railways,  and 
joint  operation  destroys  unity  of  railway  management  and 
impairs  the  rights  of  sovereignty ; and,  in  view  of  the  evils 
of  the  previous  cases  of  joint  operation  and  the  impossi- 
bility of  correcting  them,  China  can  now  no  longer  recog- 
nize it  as  a matter  of  principle.  The  whole  line  of  the 
Shantung  railway,  together  with  the  right  of  control  and 
management  thereof  should  be  completely  handed  over  to 
China ; and  after  a just  valuation  of  its  capital  and  proper- 
ties one  half  of  the  whole  value  of  the  line  not  returned  shall 
be  purchased  back  by  China  within  a fixed  period.  As  to  the 
mines  appurtenant  to  the  Shantung  Railway  which  were  al- 
ready operated  by  the  Germans,  their  plan  of  operation  shall 
be  fixed  in  accordance  with  the  Chinese  Mining  Laws. 

(5)  With  reference  to  the  construction  of  the  extension 
of  the  Shantung  Railway,  that  is,  the  Tsinan-Shunteh  and 
Kiachow-Hsuchow  Lines,  China  will,  as  a matter  of  course, 
negotiate  with  international  financial  bodies.  As  to  the 
Chefoo-Weihsien  Railway,  it  is  entirely  a dfferent  case,  and 
cannot  be  discussed  in  the  same  category. 

(6)  The  Custom  House  at  Tsintao  was  formerly  situated 


reside  and  to  carry  on  commerce,  industry,  agriculture  or 
any  other  lawful  pursuits  within  such  territory,”  the  pursuit 
of  agriculture  being  specifiically  mentioned  which  was  gen- 
erally considered  as  an  occupation,  open  to  the  citizens  or 
natives  only.  Third,  China  undertook  “to  respect  the  vested 
interests  and  rights  of  all  foreigners,  regardless  of  the 
validity  of  acquisition.  Fourth,  she  would  likewise  “carry 
out  forthwith  the  opening  of  suitable  cities  and  towns  within 
the  province  of  Shantung  for  residence  and  trade  of  the 
nationals  of  all  foreign  countries,”  which  was  one  of  the  stipu- 
lations of  the  treaty  of  May  25,  1915.  Fifth,  regulations  for 
the  opening  of  places  under  the  foregoing  clauses  should  be 


in  a leased  territory,  and  the  system  of  administration  dif- 
fered slightly  from  others.  When  the  leased  territory  is 
restored,  the  Custom  House  thereat  should  be  placed  under 
the  complete  control  and  management  of  the  Chinese  Gov- 
ernment and  should  not  be  different  from  the  other  Custom 
Houses  in  its  system  of  administration. 

(7)  The  extent  of  public  properties  is  too  wide  to  be 

limited  only  to  that  portion  used  for  administrative  purposes. 
The  meaning  of  the  statement  in  the  Japanese  memorandum 
that  such  property  will  in  principle  be  transferred  to  China, 
etc.,  rather  lacks  clearness.  If  it  is  the  sincere  wish  of 

Japan  to  return  all  the  public  properties  to  China,  she  ought 
to  hand  over  completely  the  various  kinds  of  official,  semi- 
official, municipal  and  other  public  properties  and  enter- 
prises to  China  to  be  distributed,  according  to  their  nature 
and  kind,  to  the  administrations  of  the  central  and  local 
authorities,  to  the  municipal  council  and  to  the  Chinese  Cus- 
toms, etc.,  as  the  case  may  be.  Regarding  this  there  is  no 

necessity  for  any  special  arrangement,  and 

(9)  The  question  of  the  withdrawal  of  Japanese  troops 
from  the  Province  of  Shantung  bears  no  connection  with  the 
restoration  of  the  Kiaochow  Leased  Territory  and  the  Chinese 
Government  has  repeatedly  urged  for  its  actual  execution.  It 
is  only  proper  that  the  entire  Japanese  Army  of  Occupation 
should  now  be  immediately  evacuated.  As  to  the  policing  of 
the  Kiaochow-Tsinan  Railway,  China  will  immediately  send 
a suitable  force  of  Chinese  Railway  Police  to  take  over  the 
duties.  The  foregoing  statement  gives  only  the  main  points 
which  are  unsatisfactory  and  concerning  which  the  Chinese 
Government  feels  it  absolutely  necessary  to  make  a clear 
declaration.  Further,  in  view  of  the  marked  difference  of 
opinion  between  the  two  countries,  and  apprehending  that 
the  case  might  long  remain  unsettled,  China  reserves  to  her- 
self the  freedom  of  seeking  a solution  of  the  question  when- 
ever a suitable  occasion  presents  itself. 


39 


determined  by  the  Chinese  Government  with  the  Powers 
interested. 

In  reply,  China  welcomed  the  surrender  of  the  claim  to  an 
e;xclusive  settlement  or  an  international  concession  and  also 
pointed  out  that  inasmuch  as  China  had  on  previous  occa- 
sions declared  her  intention  to  open  Kiaochow  as  a commer- 
cial port  for  the  convenience  of  trade  and  residence  of  the 
siationals  of  all  friendly  nations,  there  could  be  “no  necessity 
ifor  the  establishment  of  any  purely  foreign  settlement 
again.”  She  objected  particularly  to  the  inclusion  of  agricul- 
ture among  the  pursuits  allowed  to  foreigners. 

“Agricultural  pursuits  concern  the  fundamental  means 
of  existence  of  the  people  of  a country ; and  according  to 
the  usual  practice  of  all  countries,  no  foreigners  are  per- 
mitted to  engage  in  them.” 

She  declined  to  concede  indiscriminate  recognition  to  all 
vested  interest  and  rights  of  foreigners,  but  pointed  out  the 
difference  between  those  legitimately  acquired  under  the  Ger- 
man regime  and  those  illegally  possessed  during  the  Japanese 
military  occupation. 

“The  vested  rights  of  foreigners  obtained  through  lawful 
processes  under  the  German  regime  shall  of  course  be 
respected  but  those  obtained  by  force  and  compulsion  dur- 
ing the  period  of  Japanese  military  occupation  and  against 
law  and  treaties  can  in  no  wise  be  recognized.” 

She  also  objected  to  the  idea  of  being  called  upon  to  open 
cities  and  towns  in  Shantung  as  commercial  ports  and  de- 
clared that  “the  opening  of  such  places  should  nevertheless 
be  left  to  China’s  own  judgment  and  selection  in  accordance 
with  circumstances,”  plainly  maintaining  her  own  full  sove- 
reignty. She  further  declined  to  enter  into  previous  nego- 
tiations as  to  the  regulations  governing  the  opening  of  such 
places,  thus  again  asserting  the  principle  of  sovereignty,  al- 
though conceding  that  China  would  “undoubtedly  bear  in 
mind  the  object  of  affording  facilities  to  international  trade 
and  formulate  them  according  to  established  precedents  of 
self-opened  ports.” 


40 


In  the  third  proposal,  the  joint  enterprise  was  proposed  of 
the  Kiaochow-Tsinanfu  Railroad,  as  stipulated  in  the  Agree- 
raent  of  September  24,  1918,  respecting  the  control  of  the 
Kiaochow  Railway,  and  also  of  the  mines  appurtenant  thereto. 
To  this  China  strenuously  objected  on  the  ground  not  only 
of  the  illegal  acquisition  in  consequence  of  the  violation  of 
China’s  neutrality  and  sovereignty,  but  also  of  the  undesira- 
bility of  the  foreign  control  of  railways  and  the  necessity  of 
unification  and  nationalization  of  the  same. 

“The  joint  operation  of  the  Shantung  railways,  that  is, 
the  Kiao  Chow-Tsinanfu  Line,  by  China  and  Japan  is  ob- 
jected to  by  the  entire  Chinese  people.  It  is  because  in 
all  countries  there  ought  to  be  a unified  system  for  rail- 
ways, and  the  joint  operation  destroys  unity  of  railway 
management  and  impairs  the  rights  of  sovereignty;  and, 
in  view  of  the  evils  of  the  previous  cases  of  joint  operation 
and  the  impossibility  of  correcting  them,  China  can  now 
no  longer  recognize  it  as  a matter  of  principle.  The  whole 
line  of  the  Shantung  railway,  together  with  the  right  of 
control  and  management  thereof  should  be  completely 
handed  over  to  China : and  after  a just  valuation  of  its 
capital  and  properties  one-half  of  the  whole  value  of  the 
line  not  returned  shall  be  purchased  back  by  China  within 
a fixed  period.  As  to  the  mines  appurtenant  to  the  Shan- 
tung railway  which  were  already  operated  by  the  Germans, 
their  plan  of  operation  shall  be  fixed  in  accordance  with 
the  Chinese  Mining  Laws.” 

The  fourth  proposal  offered  to  renunciate  the  preferential 
rights  with  regard  to  foreign  assistance  in  persons,  capital  and 
material,  as  stipulated  in  the  Sino-German  Treaty  of  March 
6,  1898.  This  would  eliminate  the  wall  of  preferential  claims 
and  thus  open  Shantung  to  the  enterprise  of  all  foreigners, 
indicating  the  desire  of  the  Japanese  to  maintain  equality  of 
commercial  opportunities.  To  this  favorable  proposal  China 
was  not  opposed,  and  hence  she  made  no  reply  thereto.  Upon 
a closer  examination,  however,  this  apparent  renunciation  is 
tantamount  to  a surrender  of  something  which  Japan  has  not 
acquired.  Maintaining  as  we  do  that  the  Kiaochow  Lease 


41 


Convention  of  March  6,  1898,  which  embodied  the  prefer- 
ential clause,  was  abrogated  by  China’s  declaration  of  war 
against  Germany,  it  is  but  plain  that  the  German  rights  of 
preference  were  nullified  upon  the  declaration  of  hostility. 
While  Japan  might  claim  that  the  treaty  of  peace  with  Ger- 
many, June  28,  1919,  awarded  her  the  German  rights  in 
Shantung,  it  is  to  be  maintained  that  China  did  not  sign  that 
treaty  and  thus  refused  to  recognize  the  validity  of  the 
award.  While  voluntary  renunciation  on  the  part  of  Japan 
might  be  commendable,  her  proposal  did  not  harmonize  with 
the  fundamental  conviction  and  principle  of  the  Chinese. 

In  the  fifth  proposal,  the  extensions  of  the  Kiaochow- 
Tsinanfu  Railway,  as  provided  in  the  agreement  of  May  24, 
1918  (respecting  the  construction  of  the  Tsinan-Shunteh  and 
Kaomi-Shuchow  Railways)  and  the  options  for  the  construc- 
tion of  the  Chefoo  Weihsien  Railway  as  stipulated  in  the 
Treaty  of  May  25,  1915,  respecting  Shantung,  were  to  be 
thrown  open  for  the  common  activity  of  the  international 
financial  consortium.  Inasmuch  as  the  exchange  of  letters 
between  Thomas  W.  Lamont  and  N.  Kajiwara  on  May  11, 
1920,  and  the  Japanese  entrance  into  the  New  International 
Banking  Consortium  placed  these  railway  concessions  within 
the  scope  of  the  New  Consortium,  this  proposal  was  deemed 
as  a mere  statement  of  a situation  already  in  existence.  The 
reply  was  therefore  made : 

“With  reference  to  the  construction  of  the  extension  cf 
the  Shantung  Railway,  that  is,  the  Tsinan-Shunteh  and 
Kiao  Chou-Hsuchou  Lines,  China  will,  as  a matter  of 
course,  negotiate  with  international  financial  bodies.” 

But  as  the  Chefoo-Weihsien  Railway  concession  was  ex- 
acted under  duress  by  the  treaty  of  May  25,  1915,  which 
should  be  either  abrogated  or  revised,  the  suggestion  there- 
about was  deemed  to  be  “entirely  a different  case”  and  could 
not  “be  discussed  in  the  same  category.” 

The  sixth  proposal  tendered  to  make  the  status  of  the  cus- 
toms house  at  Tsingtao  as  forming  an  integral  part  of  the 


42 


general  customs  system  of  China  clearer  than  under  the 
German  regime.  Inasmuch  as  the  full  control  of  the  cus- 
toms house  at  Tsingtao  was  considered  as  a natural  con- 
sequence of  the  restoration  of  Kiaochow  Leased  Territory, 
China  contended  that  the  status  of  the  Tsingtao  customs 
house  should  be  the  same  as  that  of  any  other  Chinese  cus- 
toms house. 

“When  the  leased  territory  is  restored,  the  custom  house 
thereat  should  be  placed  under  the  complete  control  and 
management  of  the  Chinese  Government  and  should  not  be 
different  from  the  other  custom  houses  in  its  system  of 
administration.” 

In  the  seventh  proposal,  public  property  used  for  adminis- 
trative purposes  within  the  leased  territory  of  Kiaochow  was 
tendered  to  be  transferred  to  China,  but  as  to  the  maintenance 
and  operation  of  public  works  and  establishments,  special  ar- 
rangement was  to  be  made  between  the  Japanese  and  Chinese 
governments.  This  proposal  volunteered  the  transfer  of  pub- 
lic property  used  for  administrative  purposes,  but  still  in- 
sisted on  previous  negotiation  or  special  arrangement  for  the 
disposal  of  public  works  and  establishments,  which  consti- 
tuted one  of  the  four  conditions  attached  to  the  Japanese 
pledges  of  restoration  of  Kiao  Chou  as  embodied  in  the  ex- 
change of  notes.  May  25,  1915.  Inasmuch  as  all  public 
properties,  either  for  administrative  purposes  or  otherwise, 
should  be  returned  with  the  restoration  of  the  leased  terri- 
tory without  special  arrangements,  the  proposal  was  there- 
fore rejected: 

“The  extent  of  public  properties  is  too  wide  to  be  limited 
only  to  that  portion  used  for  administrative  purposes.  If 
it  is  the  sincere  wish  of  Japan  to  return  all  the  public  prop- 
erties to  China,  she  ought  to  hand  over  completely  the 
various  kinds  of  official,  semi-official,  municipal  and  other 
public  properties  and  enterprises  to  China  to  be  distributed 
according  to  their  nature  and  kind,  to  the  administrations 
of  the  central  and  local  authorities,  to  the  municipal  coun- 
cil and  to  the  Chinese  customs,  etc.,  as  the  case  may  be. 
Regarding  this  there  is  no  necessity  for  any  special 
arrangement.” 


43 


The  eighth  item  proposed  the  appointment  of  representa- 
tive commissioners  by  the  Chinese  and  Japanese  governments 
to  arrange  detailed  plans  “for  carrying  into  effect  the  terms 
of  settlement  above  indicated  and  for  the  purpose  of  adjust- 
ing other  matters  not  embodied  therein.”  To  this  suggestion 
China  made  no  reply. 

The  ninth  and  last  term  of  settlement  tendered  the  with- 
drawal of  Japanese  troops  along  the  Kiao  Chou-Tsinanfu 
Railway  upon  the  organization  by  China  of  a police  force  to 
take  over  the  protection  of  the  line.  This  offer  was,  however, 
accompanied  by  the  reservation  that  the  question  of  the 
organization  of  a special  police  guarding  the  railway  should 
be  reserved  for  future  consideration  between  Japan  and 
China.  This  exception  signified  that  Japan  still  held  on  to 
the  claim  of  establishing  a police  force  trained  and  controlled 
by  the  Japanese,  as  stipulated  in  Article  4 of  the  Agreement 
of  September  24,  1918,  respecting  control  of  the  Kiao 

Chou-Tsinanfu  Railway.  As  this  proposal  was  tantamount 
to  the  original  claim  of  a police  force  trained  and  controlled 
by  the  Japanese  and  as  the  agreement  in  question  of  Sep- 
tember 24,  1918,  was  considered  invalid  or  voidable,  and  since 
the  presence  of  Japanese  troops  infringes  upon  her  sovereignty, 
China  could  not  but  decline  the  offer. 

“The  question  of  the  withdrawal  of  Japanese  troops  of 
Shantung  province  bears  no  connection  with  the  restoration 
of  the  Kiao  Chou  Leased  Territory  and  the  Chinese  Gov- 
ernment has  urged  repeatedly  for  its  'actual  execution'.  It 
is  only  proper  that  the  entire  Japanese  Army  of  Occupation 
should  now  be  immediately  evacuated.  As  to  the  policing 
of  the  Kiao  Chou-Tsinan  Railway,  China  will  immediately 
send  a suitable  force  of  Chinese  railway  police  to  take  over 
the  duties.” 

From  the  above  terms  of  settlement  as  offered  by  Japan, 
it  can  be  seen  that  what  Japan  tendered  to  surrender  was  not 
hers  by  right,  but  rather  what  she  should  have  given  up. 
Inasmuch  as  the  Kiao  Chou  Leased  Convention  of  March  6, 


44 


1898,  is  regarded  as  abrogated  with  the  declaration  of  war, 
the  Kiao  Chou  Leasehold  and  the  German  preferential  rights 
have  therewith  been  nullified.  As  the  exchange  of  letters 
between  Thomas  W.  Lamont  and  N.  Kajiwara  on  May  11, 
1920,  placed  the  extensions  of  the  Shantung  Railway  within 
the  scope  of  the  New  International  Banking  Consortium,  the 
railways  in  question  should  have  become  open  to  the  common 
activities  of  the  New  Consortium.  The  only  term  of  settle- 
ment that  might  be  commended  and  regarded  with  favor  is 
the  offer  to  surrender  the  claim  to  an  exclusive  Japanese 
settlement  or  an  international  concession,  but  this  is  offset 
by  a requirement  to  recognize  all  vested  interests  and  rights 
acquired  during  the  Japanese  military  occupation,  legitimate 
or  illegitimate. 

On  the  other  hand  it  is  also  plain  that  Japan  did  not  pro- 
pose to  surrender  any  vital  interests,  or  to  meet  any  funda- 
mental objection  of  the  Chinese.  She  still  insisted  on  the 
joint  enterprise  of  the  Kiao  Chou-Tsinanfu  Railway,  future 
negotiation  regarding  the  organization  of  the  railway  police, 
special  arrangement  for  the  disposal  of  public  works  and 
establshments,  clearer  definition  of  the  status  of  the  customs 
house  at  Tsing  Tao,  and  the  recognition  of  vested  interests 
acquired  by  foreigners  legitimately  or  otherwise.  In  short, 
Japan  still  aims  to  achieve  economic  domination  in  Shantung. 
She  made  no  confession  of  her  mistake  or  crime  in  landing 
her  troops  at  Lungkow  and  then  marching  through  the  Chi- 
nese territory  and  seizing  the  Kiao  Chou-Tsiananfu  Railway 
and  the  adjoining  mines,  and  thus  failed  to  recognize  and 
respect  the  fundamental  principle  of  the  sovereignty  of  China. 
She  still  ignored  the  basic  contention  of  the  Chinese  that 
China’s  declaration  of  war  abrogated  all  the  treaties,  conven- 
tions and  agreements  with  Germany,  inclusive  of  the  Kiao  Chou 
Leasehold  and  that  China  thus  recovered  to  herself  all  the 
former  German  concessions.  She  further  failed  to  concede 
that  her  possession  of  German  rights  in  Shantung  was  vali- 


45 


dated,  neither  by  the  treaty  of  May  25,  1915,  which  was 
concluded  under  duress,  nor  by  the  Agreement  of  September 
24,  1918,  respecting  control  of  the  Kiao-Chou-Tsinanfu 

Railway,  which  was  entered  upon  for  illegal  consideration, 
nor  by  the  Treaty  of  Peace  with  Germany,  June  28,  1919,  to 
which  China  was  not  a contracting  party. 

The  Chinese  government  therefore  prefaced  the  reply  with 
a declaration  of  disappointment  over  the  terms  of  settlement 
and  failure  of  Japan  to  meet  the  fundamental  contentions 
and  objections  of  the  Chinese: 

“With  reference  to  the  important  Shantung  Question 
which  is  now  pending  between  China  and  Japan,  China  has 
indeed  been  most  desirous  of  any  early  settlement  for  the 
restitution  of  her  sovereign  rights  and  territory.  The 
reason  why  China  has  not  until  now  been  able  to  commence 
negotiations  with  Japan  is  because  of  the  fact  that  the 
basis  upon  which  Japan  claims  to  negotiate  are  all  of  a 
nature  either  highly  objectiopable  to  the  Chinese  Gov- 
ernment and  the  Chinese  people,  or  such  to  which  they 
have  never  given  their  recognition.  Furthermore,  in  regard 
to  the  Shantung  Question,  although  Japan  has  made  many 
vague  declarations  she  has  in  fact  had  no  plan  which  is 
fundamentally  acceptable.  Therefore  the  case  has  been 
pending  for  many  years  much  to  the  unexpectation  of  China. 
On  September  7 Japan  submitted  certain  proposals  for  the 
readjustment  of  the  Shantung  Question  in  the  form  of  a 
memorandum  together  with  a verbal  statement  by  the 
Japanese  Minister  to  the  effect  that  inview  of  the  great 
principle  of  Sino-Japanese  friendship  Japan  has  decided 
upon  this  fair  and  just  plan  as  her  final  concession,  etc. 
After  careful  consideration  the  Chinese  Government  feels 
that  much  in  Japan’s  new  proposals  is  still  incompatible 
with  the  repeated  declarations  of  the  Chinese  Government, 
with  the  hopes  and  expectations  of  the  entire  Chinese  peo- 
ple, and  with  the  principles  laid  down  in  treaties  between 
China  and  the  foreign  powers.  If  these  proposals  are  to  be 
considered  the  final  concession  on  the  part  of  Japan,  they 
surely  fall  short  to  prove  the  sincerity  of  Japan’s  desire  to 
settle  the  question.” 

Consequent  to  the  rejection  of  the  terms  of  settlement,  and 
anxious  to  reach  a solution  of  the  Shantung  Question  at  an 

46 


early  date,  the  Chinese  Government  made  the  reservation 
at  the  conclusion  of  the  reply  “of  seeking  a solution  of  the 
question  whenever  a suitable  occasion  presents  itself,”  appar- 
ently giving  the  hint  that,  with  concurrence  of  the  powers 
interested,  the  Shantung  Question  might  be  made  a subject 
for  discussion  in  the  Washington  Conference  on  Limitation 
of  Armament  and  Far  Eastern  Problems. 


47 


Additional  copies  may  be  obtained  upon  request 
from  Y.  Lewis  Mason,  Circulation  Manager, 
5800  Maryland  Avenue,  Chicago,  Illinois. 


